[2007] 2 SRI L.R. – PARTS 1- 2

2007-2-sri-l-r-parts-1-2

T H E
Sri Lanka Law Reports
Containing cases and other matters decided by the
Supreme Court and the Court of Appeal of
the Democratic Socialist Republic of Sri Lanka
[2007] 2 SRI L.R. – PARTS 1- 2
PAGES 01-56
Consulting Editors : HON. S.N. SILVA, Chief Justice
HON. P. WIJAYARATNE, J. President,
Court of Appeal (upto 27.02.2007)
: HON K. SRIPAVAN, J. President,
Court of Appeal (from 27.02.2007)
Editor-in-Chief : L.K. WIMALACHANDRA
Additional Editor-in-Chief : ROHAN SAHABANDU
PUBLISHED BY THE MINISTRY OF JUSTICE
Printed at Sarvodaya Vishva Lekha, Moratuwa.
Price : Rs. 40.00 ‘X’,D I G E S T
( 2007 ) 2 Sri L.R. Parts 1 – 2
DEBT RECOVERY (SPECIAL PROVISIONS) ACT, NO. 2 OF 1990
amended by Act, No. 9 of 1994 – Constitution – Articles 24(2), 24(3), 149
and 141 – Plaintiffs right to initiate proceedings either in Sinhala or Tamil
language – Defendants right to participate in Sinhala or Tamil language. –
Civil Procedure Code, Section 49(1) and 754(2) – Alternate remedy –
Judgment or order – Revision with exceptional circumstances – Non
compliance Rule – Court of Appeal (Appellate Procedure) Rules No. 1990 –
Laches.
Rajakumar and Another v Hatton National Bank Ltd
EVIDENCE ORDINANCE, Section 35 Evidence (Sp.Pro.) Act 14 of 1995 –
– Marine Insurance – Breach of warranty of seaworthiness – Burden of
Proof – On whom ? – Admissibility of documents – Documents maintained
in the ordinary course of business – Setting up of a different case in appeal
– Permitted ?
Janashakthl Insurance Co. Ltd v Umbichy Ltd
FUNDAMENTAL RIGHTS – Article 126(2) of the Constitution – Has the
petitioner filed the application within the period prescribed by Article 126(2)
of the Constitution ? – Section 13(1) of the Human Rights Commission Act,
No. 21 of 1996
Kariyawasam v Southern Provincial Road Development Authority
and 8 Others
MAINTENANCE ORDINANCE, Section 6 – Corroboration – When ? –
D.N.A. Test? – Paternity – Cogent evidence – Necessity to corroborate
evidence of mother
Weeraslnghe v Jayaslnghe
(To be continued in parts 3 & 4)
WRIT OF CERTIORARI – Quash decision to sign Cease Fire Agreement
(CFA) – Agreement illegal? – Null and void ? – Constitution Articles 4(b) and
29 with Articles 30(1) and 43(1) 6th Amendment Article 140 – Executive
power – Collective responsibility of Cabinet – Policy decision – Legality of
entering into an agreement with the LTTE ? – Prevention of Terrorism Act,
No. 48 of 1979 – Judicial Review – Policy decisions – Could the Court
consider the illegality or mala fide of a policy decision?
Tilwin Sllva v Ranll Wlckremasinghe and Others£4 Rajakumar and Another v Hatton National Bank Ltd.
RAJAKUMAR AND ANOTHER
v
HATTON NATIONAL BANK LTD.
COURT OF APPEAL
EKANAYAKE, J.
SISIRA DE ABREW, J.
CA 2012/2003
DC MT. LAVINIA 123/2001/DCM
DECEMBER 12, 2006
Debt Recovery (Special Provisions) Act No. 2 of 1990 as amended by Act No.
9 of 1994 – Constitution Articles 24(2), 24(3) – Articles 149, 141 – Plaintiffs
right to initiate proceedings either in Sinhala or Tamil language – Defendants
right to participate in Sinhala or Tamil language. Civil Procedure Code 49(1),
Section 754(2) Alternate remedy – Judgment or order – Revision – exceptional
circumstances – Non compliance with Rule – Court of Appeal (Appellate
Procedure) Rule – 1990 – Laches.
The plaintiff-respondent instituted action in the District Court of Mt. Lavinia
under and in terms of the Debt Recovery (Special Provisions) Act No.2 of 1990
as amended in order to recover a certain amount. The District Court granted
leave to appear and show cause upon deposit of a sum of Rs. 2.5 million, the
terms sought by the defendant-appellant were refused by Court – Judgment
was thereafter entered and decree nisi was made absolute. The defendant
moved in Revision.
It was contended by the appellant a Tamil National that the plaintiff bank failed
to provide copies of the plaint and the affidavit in the Tamil language or at least
in English language – contravening Article 24(2), Article 24(3). The respondent
contended that, the Revision application is misconceived in law, there is delay
and that, Rule 3(1) of the Court of Appeal Rules 1990 – has not been complied
with.
Held:
(1) A plain reading of Article 24(2) suggests that the plaintiff bank has the
right to initiate proceedings either in the Sinhala or Tamil language, and
the defendant has the right to participate in the proceedings in Court
either in Sinhala or Tamil language.
In this case the petitioners have chosen to participate in the
proceedings in the Sinhala language, the motion is also in the Sinhala
language — Article 24(2) has been complied with.2 Sri Lanka Law Reports [2007] 2 Sri LR
(2) There must be evidence before the District Court that the 1st
defendant-petitioner is not conversant with the language used in the
District Court. In the papers filed by the defendant-petitioners they
have not stated that, the 1 st defendant-petitioner is not conversant in
the Sinhala language. – The position contended under Article 24(3)
cannot therefore be accepted.
(3) As regards the position that, the plaintiff bank has not complied with
Section 49 (1) of the Civil Procedure Code – there was no evidence
before the District Court to suggest that the language of the 1st
defendant-petitioner was not the language of the District Court of Mt.
Lavinia.
Held further:
(4) The impugned order is not a final order and as such the defendantpetitioner could invoke the jurisdiction of the Court of Appeal under
section 754(2); The defendant had an alternate remedy.
(5) The petitioners are not entitled to invoke the revisionary jurisdiction of
the Court of Appeal, in that – the petitioners have not established
exceptional circumstances warranting the intervention of the Court of
Appeal.
(6) The petitioners have not produced a copy of the impugned order – they
have not complied with Rule 3(1) of the Court of Appeal (Appellate
Procedure) Rules 1990 – without examining the order, Court is unable
to make a determination as to the correctness of same – this is a
necessary document.
Held further:
(7) The present application has been filed eight months after the
pronouncement of the 1st order and four months after the 2nd order –
there is delay.
Per Sisira de Abrew, J.
“Revision being a discretionary remedy is not available to those who sleep
over their rights, I further hold that it is not the function of the Court of Appeal,
in the exercise of its revisionary jurisdiction to relieve parties of the
consequences of their own folly, negligence and laches”.
APPLICATION in revision from an order of the District Court of Mt. Lavinia.
Cases referred to:
(1) in Re the insolvency ofHayman Thornhill 2 NLR 105.
(2) Ameen v Rasheek 6 CLW 8.
(3) Rustom v Hapangama 1978-79-80 1 Sri LR 352 (SC)Rajakumar and Another v Hatton National Bank Ltd.
CA (Sisira de Abrew, J.)
(4) RasheedAliv MohamedAli 1981 2 Sri LR 29 (CA)
(5) RasheedAliv MohamedAli 1981 1 Sri LR 262 (SC)
(6) Thilagaratnamv E.A.R Edirisinghe 1982 1 Sri LR 56.
(7) Hotel Galaxy Ltd. v Mercantile Hotel Management Ltd. 1987 1SHLR5.
(8) Caderaman Pulle v Ceylon Paper Sacks Ltd. 2001 3 Sri LR 112.
(9) Dharmaratne v Palm Paradise Cabanas Ltd. 2003 3 Sri LR 24.
(10) Lokutthuttripitiyage Nandawathie v Madapathage D. Gunawathie CA
769/2000 DC Mt. Lavinia 33/92/P CAM 27.9.2001.
(11) Mary Nona v Francina 1988 2 Sri LR 250.
(12) Navaratnasingham v Arumugam 1980 2 Sri LR 01.
(13) Samarasekera v Mudiyanse 1990 1 Sri LR 137.
(14) Shanmugadevi v Kulathilake 20031 Sri LR 215.
(15) Don Lewis v Dissanayake 70 NLR 8.
(16) H.A.M. Cassimv G.A. Batticaloa 69 NLR 403.
(17) Colombo Apothecaries Ltd. v Commissioner of Labour 1998 3 Sri LR
320.
(18) Wijesinghe v Tharmaratnam 4 Sri Kantha 47.
Lakshman Jaya Kumar for defendant-petitioner-petitioner.
Palitha Kumarasinghe PC with /. Idroos for plaintiff-respondent-respondent.
Cur.adv.vult.
March 16, 2007
SISIRA DE ABREW, J.
Plaintiff-respondent-respondent (hereinafter referred to as the
plaintiff bank) instituted action in the District Court of Mt. Lavinia
under and in terms of Debt Recovery (Special Provisions) Act No.
2 of 1990 as amended by Act No. 9 of 1994 against the defendantpetitioners-petitioners (hereinafter referred to as the defendantpetitioners) in order to recover Rs. 7.5 million. The District Court
issued a decree nisi against the defendant-petitioners. The
defendant-petitioners made an application for leave to appear and
show cause against the said decree nisi. The learned District
Judge, by his order dated 20.3.2003, granted leave upon deposit of
a sum of Rs. 2.5 million before 16.7.2003. The defendant
petitioners, by motion dated 15.7.2003, sought permission of the
District Court, inter alia, (a) to deposit three deeds pertaining to
three lands belonging to the 2nd defendant-petitioner; (b) thereafter4 Sri Lanka Law Reports [2007] 2SriL.R
to sell the lands; (c) and to deposit the proceeds of the sale of the
three lands as security instead of the security ordered by the District
Court. The learned District Judge, by his order dated 16.7.2003,
refused the application in the motion. The learned District Judge made
further order and entered judgment for the plaintiff bank as prayed for
as the defendant-petitioners have failed to comply with the order
dated 20.3.2003. The decree nisi was also made absolute on this
date. The defendant-petitioners, by this revision application, seeks to
revise the orders dated 20.3.2003 and 16.7.2003.
Learned Counsel for the defendant-petitioners contended
before us that the plaintiff bank failed to provide copies of the plaint
and the affidavit in the Tamil language or at least in English
language to the 1st defendant-petitioner who is a Tamil national
and as such the plaintiff bank had not complied with Articles 24(2)
and 24(3) of the Constitution of the Democratic Socialist Republic
of Sri Lanka (the Constitution). Article 24(2) of the Constitution
reads as follows:
“Any party or applicant or any person legally entitled to represent
such party or applicant may initiate proceedings, and submit to
Court pleadings and other documents, and participate in the
proceedings in Court, in either Sinhala or Tamil.”
A plain reading of the Article 24(2) of the Constitution suggests that
the plaintiff bank has the right to initiate proceedings either in Sinhala
or Tamil language and the defendant has the right to participate in the
proceedings in Court either in Sinhala or Tamil language. In this case
the petitioners have chosen to participate in the proceedings in the
District Court of Mount Lavinia in the Sinhala language. This is evinced
by the language used in the motion dated 15.07.2003 filed on behalf of
the defendant-petitioners. The language used in the said motion is the
Sinhala language. Thus the above contention of the learned Counsel
for the defendant petitioners cannot be accepted. On being questioned
on the propriety of his contention, Learned Counsel for the defendantpetitioners, in the course of the hearing of this application, moved to
withdraw this contention.
Learned Counsel for the defendant-petitioners next based his
contention on Article 24(3) of the Constitution. He made the same
submission of not handing over a copy in Tamil language or English
language and further submitted that since the 1st defendant-petitionerRajakumar and Another v Hatton National Bank Ltd.
CA (Sisira de Abrew. J.) 1
is not conversant with the language used in the District Court of Mount
Lavinia the plaintiff bank should have given a copy of the plaint and the
affidavit in the Tamil language or the English language. I now turn to
this question. Article 24(3) of the Constitution reads as follows:
“Any judge, juror, party or applicant or any person legally
entitled to represent such parly or applicant, who is not
conversant with the language used in a Court, shall be entitled
to interpretation and to translation into Sinhala or Tamil,
provided by the State, to enable him to understand and
participate in the proceedings before such Court, and shall
also be entitled to obtain in such language, any such part of
the record or a translation thereof, as the case may be, as he
may be entitled to obtain according to law.”
If the contention of learned Counsel for the defendantpetitioners is correct, then there must be evidence before the
District Court that the 1st defendant-petitioner is not conversant
with the language used in the District Court of Mount Lavinia which,
according to the proceedings, is the Sinhala language. In the
petition and affidavit filed by the defendant-petitioners, they have
not stated that the 1 st defendant-petitioner is not conversant with
the Sinhala language. Therefore the above contention of learned
Counsel should fail.
Learned Counsel for the defendant-petitioners next contended
that the plaintiff bank had not complied with section 49(1) of the
Civil Procedure Code (CPC) and raised the same question that the
1 st defendant-petitioner was not provided with the copy of the plaint
and affidavit in the Tamil language or English language. Section
49(1) of the CPC reads as follows:
“The plaintiff shall endorse on the plaint, or annex thereto, a
memorandum of the documents, if any, which he has produced
along with it; and if the plaint is admitted, shall present as many
copies on unstamped paper of the plaint as there are defendants,
translated into the language of each defendant whose language is
not the language of the Court; unless the court, by reason of the
length of the plaint or the number of the defendants or for any other
sufficient reason, permits him to present a like number of concise
statements of the nature of the claim made, or of the relief or
remedy required in the action, in which case he shall present such
statements.”6 Sri Lanka Law Reports [2007] 2SriLR
The words “translated into the language of each defendant
whose language is not the language of Court” must be
emphasized. Was there evidence before the learned District Judge
to suggest that the language of the 1 st defendant-petitioner was not
the language of the District Court of Mount Lavinia? The above
question has to be answered in the negative because the
defendant-petitioners have failed to aver this position viz; that his
language is not the language of the District Court, in the petition
and affidavit filed both in the District Court and this Court. For these
reasons the above contention of learned Counsel for the
defendant-petitioners should fail.
Learned President’s Counsel for the plaintiff’s bank on the other
hand, contended that the defendant-petitioners cannot now seek to
revise the order dated 20.3.2003 as they have, in the motion dated
15.7.2003 filed in the District Court of Mount Lavinia, sought to
deposit proceeds of sale of lands belonging to the 2nd defendantpetitioner in compliance with the order dated 20.3.2003 wherein the
learned District Judge granted leave to appear upon deposit of Rs.
2.5 million. I now advert to this contention. The defendantpetitioners, by the said motion dated 15.7.2003, among other
things, sought permission of the Court, instead of the security
ordered by the Court, to deposit deeds of certain lands belonging
to the 2nd defendant-petitioner and to deposit proceeds of sale of
these lands in the event of the Court granting permission to sell the
lands. They have stated in the said motion that they were seeking
to do so in compliance with the order dated 20.3.2003. On a
consideration of the totality of the contents of the said motion, it
seems to me that the defendant-petitioners have accepted the
correctness of the order dated 20.3.2003. For these reasons, I hold
the view that the petitioners are not entitled to challenge the
correctness of the order dated 20.3.2003 by way of revision and
that learned President’s Counsel is entitled to succeed in his
argument.
Learned President’s Counsel next contended that the
defendant-petitioners could not invoke the revisionary jurisdiction of
this Court against the order dated 20.3.2003 as the defendantpetitioners could have appealed against the said order with leave
of this Court first had and obtained. He drew our attention toRajakumar and Another v Hatton National Bank Ltd.
CA (Sisira de Abrew, J.)
section 754(2) of the CPC which reads as follows:
“Any person who shall be dissatisfied with any order made by
any original Court in the course of any civil action, proceeding,
or matter to which he is or seeks to be a party, may prefer an
appeal to the Court of Appeal against such order for the
correction of any error in fact or in law, with the leave of the
Court of Appeal first had and obtained.”
It is common ground that the order made on 20.3.2003 is not a
final order and as such the defendant-petitioners, in my view, could
invoke the jurisdiction of this Court under section 754(2) of the
CPC. I, therefore, conclude that defendant-petitioners had an
alternative remedy against the said order dated 20.3.2003.
Learned President’s Counsel next brought to our notice that the
order dated 16.7.2003 is a final order and as such the defendantpetitioner could have preferred an appeal against the said order in
terms of section 754(1) of the CPC which reads as follows:
“Any person who shall be dissatisfied with any judgment
pronounced, by any original Court in any civil action, proceeding or
matter to which he is a party may prefer an appeal to the Court of
Appeal against such judgment for any error in fact or in law.”
‘Judgment’has been interpreted in section 754(5) of the CPC as
follows: “Judgment” means any judgment or order having the
effect of a final judgment made by any civil court.
The learned District Judge, by his order dated 16.7.2003, made
the decree nisi absolute. Thus, it is crystal clear, that this order is a
final order.
Upon a consideration of section 754(1) of the CPC and the order
dated 16.7.2003,1 hold that the defendant-petitioners had a right of
appeal against the said order. For the above reasons, I conclude
that the defendant-petitioners had alternative remedies against the
orders dated 20.3.2003 and 16.7.2003. Now the question that
remains for consideration is whether the defendant-petitioners
could invoke the revisionary jurisdiction of this Court when there is
an alternative remedy. In this connection, I would like to consider
certain judicial decisions .
In the case of In Re the insolvency of Hayman Thornhill
discussing the scope and object of the exercise of revisionary8 Sri Lanka Law Reports [2007] 2 Sri LR
powers by the Supreme Court Bonser C.J. stated as follows:
“The Supreme Court has the power of revising the proceedings
of all inferior courts. This power …. The object at which the
Supreme Court aims in exercising its powers of revision is the due
administration of justice; and whether any particular person has
complained against an order; proposed to be revised, or is
prejudiced by it, is not to be taken into account in the exercise of
such power.”
In Ameen v Rasheed2) Abrahams, CJ. observed: “It has been
represented to us on the part of the petitioner that even if we find
the order to be appealable, we still have discretion to act in
revision. It has been said in this Court often enough that revision of
an appealable order is an exceptional proceeding, and in the
petition no reason is given why this method of rectification has
been sought rather than the ordinary method of appeal. I can see
no reason why the petitioner should expect us to exercise our
revisional powers in his favour when he might have appealed, and
I would allow the preliminary objection and dismiss the application
with costs.”
The above judgment of Abrahams, CJ. was cited with approval
by His Lordship Justice Ismail in Rustom v HapangamaW and
stated thus: “The trend of authority clearly indicates that where the
revisionary powers of the Court of Appeal are invoked the practice
has been that these powers will be exercised if there is an
alternative remedy available only if the existence of special
circumstances are urged necessitating the indulgence of this Court
to exercise these powers in revision.If the existence of special
circumstances does not exist then this Court will not exercise its
powers in revision.”
In Rasheed AH v Mohamed AM4) Soza, J. remarked thus: “The
powers of revision conferred on the Court of Appeal are very wide
and the Court has the discretion to exercise them whether an
appeal lies or not or whether an appeal had been taken or not.
However, this discretionary remedy can be invoked only where
there are ‘exceptional circumstances’ warranting the intervention of
the Court.” On appeal to the Supreme Court, His Lordship Justice
Wanasundara affirming the view expressed by Soza, J. held as
follows: “The powers of revision vested in the Court of Appeal areRajakumar and Another v Hatton National Bank Ltd.
CA (Sisira de Abrew, J.) ?_
very wide and the Court can in a fit case exercise that power
whether or not an appeal lies. Where the law does not give a right
of appeal and makes the order final, the Court of Appeal may
nevertheless exercise its powers of revision, but it should do so
only in exceptional circumstances. Ordinarily the Court will not
interfere by way of review, particularly when the law has expressly
given an aggrieved party an alternate remedy such as the right to
file a separate action except when non-interference will cause a
denial of justice or irremediable harm.” Vide Rasheed AH v
Mohamed AliS5)
In Thilagaratnam v E.A.P. Edirisinghd6) L.H. de Alwis, J.
remarked thus: “Though the Appellate Courts’ powers to act in
revision were wide and would be exercised whether an appeal has
been taken against the order of the original court or not such
powers would be exercised only in exceptional circumstances.” In
Hotel Galaxy Ltd. v Mercantile Hotel Management Ltd.V)
Sharvananda, CJ. commenting on the requirement of exceptional
circumstances in the exercise of revisionary powers held: “It is
settled law that the exercise of the revisionary powers of the
appellate court is confined to cases in which exceptional
circumstances exist warranting its intervention.”
Dr. Ranaraja, J. commenting on the requirement of exceptional
circumstances in a revision application held as follows: “The power
of revision vested in the court is discretionary. The power will be
exercised when there is no other remedy available to a party. It is
only in very rare instances where exceptional circumstances are
present that courts would exercise powers of revision in cases
where an alternative remedy has not been availed of by the
applicant. Thus the general principal is that revision will not lie
where an appeal or other statutory remedy is available. It is only if
the aggrieved party can show exceptional circumstances, for
seeking relief by way of revision, rather than by way of appeal,
when such appeal is available to him as of right, that the court will
exercise its revisionary jurisdiction in the interests of due
administration of justice.”
Nanayakkara, J. stressed the need for exceptional circumstances in the exercise of revisionary powers by the Court of Appeal
in Caderamanpulle v Ceylon Paper Sacks LtdS8) and stated thus:10 Sri Lanka Law Reports [2007] 2 SriLR
“The existence of exceptional circumstances is a pre-condition for
the exercise of powers of revision.” The scope and object of the
exercise of revisionary powers by the Court of Appeal is succinctly
stated by His Lordship Justice Amaratunga in Dharmaratne v Palm
Paradise Cabanas LtdS9) “Existence of exceptional circumstances
is the process by which the court selects the cases in respect of
which the extraordinary method of rectification should be adopted,
if such a selection process is not there revisionary jurisdiction of
this court will become a gateway of every litigant to make a second
appeal in the garb of a Revision Application or to make an appeal
in situations where the legislature has not given a right of appeal.”
In Lokutthuttripitiyage Nandawathi v Madapathage D.
GunawathW His Lordship Justice Udalagama observed thus: “In
an application for revision it is necessary to urge exceptional
circumstances warranting the interference of this court by way of
revision. Filing an application by way of revision to set aside an
order made by a District Court 3 1/2 years before the institution of
the revision application is considered as inordinate delay and the
application is dismissed on the ground of laches.”
Upon a consideration of the above judicial decisions, I hold that
the revisionary powers of this Court cannot be exercised when an
alternative remedy is available unless there are exceptional
circumstances warranting the intervention of this Court.
The question that remains for consideration is whether the
defendant-petitioners, in the present case, have established
exceptional circumstances warranting the intervention of this Court.
I have carefully gone through the petition of the defendantpetitioners and I have to conclude that they have not established
exceptional circumstances warranting the intervention of this Court.
I have earlier held that the petitioners had alternative remedies
against the orders dated 20.3.2003 and 16.7.2003. For these
reasons, I hold that the defendant-petitioners are not entitled to
invoke the revisionary jurisdiction of this Court and the petition of
the defendant petitioners should fail on this ground alone.
Learned President’s Counsel next contended that the
defendant-petitioners had not produced a copy of the order dated
16.7.2003 and as such they had not complied with rule 3(1) of the
Court of Appeal (Appellate Procedure) rules 1990.1 now turn to thisRajakumar and Another v Hatton National Bank Ltd.
CA (Sisira de Abrew, J.) U_
question. It is true that the defendant-petitioners have not produced
a copy of the order dated 16.7.2003. In my view, without examining
this order, this Court is unable to make a determination as to the
correctness of this order. Therefore this is a necessary document in
deciding whether the application to revise order dated 16.7.2003
should be allowed or not. In order to appreciate the contention of the
learned President’s Counsel it is necessary to consider rule 3(1 )(a)
and (b) of the above rules. I set out below Rule 3(1 )(a) and (b).
Rule 3(1 )(a):
“Every application made to the Court of Appeal for the exercise
of the powers vested in the Court of Appeal by Articles 140 and
141 of the Constitution shall be by way of petition, together with
an affidavit in support of the averments therein, and shall be
accompanied by the originals of documents material to such
application(or duly certified copies thereof) in the form of
exhibits. Where a petitioner is unable to tender any such
document, he shall state the reason for such inability and seek
the leave of the Court to furnish such document later. Where a
petitioner fails to comply with the provisions of this rule, the
Court may ex mero motu or at the instance of any party dismiss
such application.”
Rule 3(1)(b)
“Every application by way of revision or restitutio in integrum
under Article 138 of the Constitution shall be made in like
manner together with copies of the relevant proceedings
(including pleadings and documents produced), in the Court of
First Instance, tribunal or other institution to which the
application relates.”
In Mary Nona v FrancinaW Ramanathan, J. held: “Compliance
with Rule 46 of the Supreme Court Rules 1978 in an application for
revision is mandatory. A copy of the proceedings containing so
much of the record as would be necessary to understand the order
sought to be revised and to place it in its proper context must be
filed. Merely filing copies of three journal entries with no bearing on
the matters raised in the petition is not a compliance with Rule 46.”
Rule 46 of the Court of Appeal Rules published prior to the
publication of the present Rules is almost identical with Rule 3(1) of12 Sri Lanka Law Reports [2007] 2 Sri LR
the present Court of Appeal (Appellate Procedure) Rules.
In Navarathnasingham v ArumugarrP2) Soza, J. observed thus:
“As the petitioner in the instant case had come into Court only with
a certified copy of the proceedings of 10th February, 1980, and the
order delivered on 19th February, 1980, and the orders canvassed
by him could not be reviewed in the absence of the earlier
proceedings, the evidence and original complaint which were
procured subsequently, the petition should have been rejected for
non-compliance with Rule 46.”
The above judgment of Soza, J. was cited with approval by
Gunawardane, J. in Samarasekare v Mudiyansd™) and he stated:
“The rules of procedure have been devised to eliminate delay and
facilitate due administration of justice. The instant case is a good
example which illustrates that the revisionary powers of this Court
cannot be exercised without the petitioner furnishing to this Court
the relevant proceedings on which the order sought to be revised is
based on. Rule 46 had been formulated to avert such situations.
The observance of Rule 46 is mandatory.”
Again in Shanmugadevi v KulathilakeC*4) Bandaranayake, J.
discussing the facts of that case where,
“The appellant (“the plaintiff”) instituted action against the
respondent (“the defendant”) and another person for a declaration
that the plaintiff is the tenant of the premises in suit and for an
injunction against the 1st defendant from demolishing the said
premises. The 1 st defendant pleaded that the plaintiff was in illegal
occupation of the premises as the same were burnt during the 1983
riots and were currently vested in the REPIA. The District Judge gave
judgment for the 1st defendant. The plaintiff filed a revision
application in the Court of Appeal on 12.12.2000; supported it on
15.12.2000 and obtained a stay order and notice on the 1st
defendant for 15.01.2001. The plaintiff filed with his application 4
documents including the judgment of the District Judge but failed to
file all the material documents or to explain the reason for the failure
and seek leave of court to furnish the necessary documents later, as
required by Rule 3(1 )(b) read with Rule 3(1 )(2) of the Court of Appeal
(Appellate Procedure) Rules, 1990. Instead the plaintiff amended her
petition without notice to the 1st defendant and without leave of court.
She filed one additional document with the amended petition and theCA
Rajakumar and Another v Hatton National Bank Ltd.
(Sisira de Abrew, J.) 13
balance documents with her counter objections.”
Bandaranayake, J. remarked: “The requirements of Rules
3(1 )(2) and 3 (1)(b) are imperative. In the circumstances of the
case the Court of Appeal had no discretion to excuse the failure of
the plaintiff to comply with the Rules.”
I have earlier held that the order dated 16.7.2003 is a necessary
document in order to examine the correctness of the same.
Applying the principles of the above judicial decisions, I hold that
the observance of Rule 3(1) of the Court of Appeal (Appellate
Procedure) Rules is mandatory in applications for revision. Thus,
the petition of the defendant-petitioners to revise the order dated
16.7.2003 should fail on this ground alone.
Learned President’s Counsel next contended that the
defendant-petitioners are guilty of delay and laches for the reason
that the present application has been filed eight months after the
pronouncement of the 1st order (dated 16.7.2003) and four months
after 2nd order (dated 20.3.2003). I now advert to this contention.
The present application has been filed on 21.11.2003. Therefore
the delay complained of by learned President’s Counsel is correct.
The defendant-petitioners have not explained the delay in coming
to this Court. This a case where the defendant-petitioners were
granted leave to appear upon the condition that they should deposit
Rs. 2.5 million before 16.7.2003 and the learned District Judge
made the decree nisi absolute on 16.7.2003. Thus, the defendantpetitioners should be vigilant over these developments. The
defendant- petitioners, in my view, have slept over their rights and
as such they are guilty of delay and laches.
In Don Lewis v Dissanayake^5) His Lordship Justice
Tennakoon, with whom Manicavasagar, J. agreed, discussing the
delay in moving Court in a revision application, held: “that it was not
the function of the Supreme Court, in the exercise of the jurisdiction
now invoked, to relieve parties of the consequences of their own
folly, negligence and laches. The maxim vigilantibus, non
dormientibus, jura subvention provided a sufficient answer to the
petitioner’s application.”
In H.A.M. Cassim v G.A. Batticaloa^) Sansoni, CJ. held: “An
application in revision must be made promptly if it is to be
entertained by the Supreme Court.”14 Sri Lanka Law Reports [2007] 2 Sri LR
In CA application No. 1184/88 (decided on 16.10.89), an application
to revise an order of the District Judge was refused on the ground of
delay. His Lordship Justice S.N. Silva (as he then was) observed as
follows: “We have to note that order in respect of which the application
is made was delivered by the learned District Judge on 7.10.1987. The
petitioner filed this application on 13.3.1989, one year and five months
after the impugned order. The petitioner has not explained the delay in
filing this application. A person invoking the revisionary jurisdiction of
this court has to show due diligence and institute proceedings without
delay. The petitioner sought the intervention in the District Court and as
such, was aware of the order that was made by the learned Additional
District Judge. In the circumstances we are of the view that the
petitioner has unduly delayed in filing this application and as such is
precluded from securing relief by way of revision.”
“Filing an application by way of revision to set aside an order made
by a District Court 31/2 years before the institution of the revision
application was considered as inordinate delay and the application was
dismissed on the ground of laches”. Vide Justice Udalagama in
Lokutthuttripitiyage Nandawathiv Madapathage D. Gunawathi (supra).
The power of revision vested in the Court of Appeal is discretionary.
Vide Colombo Apothecaries Ltd. v Commissioner of Labour^7),
Rasheed AH v Mohamad AH (supra), and Wijesinghe v
Tharmarathnani™). On a consideration of the above judicial decisions,
I hold that revision being a discretionary remedy is not available to
those who sleep over their rights. I further hold that it is not the function
of the Court of Appeal, in the exercise of its revisionary jurisdiction, to
relieve parties of the consequences of their own folly, negligence and
laches.
I have earlier held that the defendant-petitioners are guilty of delay
and laches, I therefore hold that the defendant-petitioners are not
entitled to invoke the revisionary jurisdiction of this Court and the
petition of the defendant-petitioners should be dismissed on this
ground alone.
For the reasons set out in my judgment, I dismiss the petition of the
defendant-petitioners with costs fixed at Rs. 40,000/-.
EKANAYAKE, J. – I agree.
Application dismissed.CA Tilwin Silva v Ranil Wickremasinghe and Others 15
TILWIN SILVA
v
RANIL WICKREMASINGHE AND OTHERS
COURT OF APPEAL
SRISKANDARAJAH, J.
CA 461/2002
JUNE 2, 2006
SEPTEMBER 22, 2006
NOVEMBER 23, 2006
JANUARY 18, 2007
Writ of Certiorari – Quash decision to sign Cease Fire Agreement (CFA) –
Agreement illegal? – Null and void? – Constitution Article 4 (b) Article 29 read
with Article 30 (1), Article 43(1) 6th Amendment Article 140 – Executive power
– Collective responsibility of Cabinet – Policy decision – Legality of entering
into an agreement with the LITE? – Prevention of Terrorism Act No. 48 of
1979 – Judicial Review – Policy decisions – Could the Court consider the
illegality or mala fide of a policy decision?
The petitioner sought a writ of certiorari to quash the decision of the 1 st
respondent Prime Minister to sign the CFA, and further sought a declaration
that the said agreement is illegal, null and void – and a writ of prohibition not
to sign any similar agreements.
Held:
(1) The petitioner’s prayer for a declaration to declare that the agreement is
illegal, null and void cannot be granted, as Article 140 does not empower
this Court to grant and issue orders in the nature of declarations. The
petitioner’s prayer for a writ of prohibition not to sign any similar
agreement is vague wide and doubtful and such relief cannot be granted.
Held further:
(2) The Cabinet which consists of the President – Head of the Cabinet, the
Prime Minister and the Cabinet of Ministers is in charge of the direction
and control of the Government and they are collectively responsible to
Parliament (Article 43 (1)). When these provisions are considered, in the
light of the concept of collective responsibility of the Cabinet the President
and the Cabinet are part of one unit that is collectively responsible.16 Sri Lanka Law Reports [2007] 2 Sri LR
The deliberation within the Cabinet amongst its members including the
President, is a matter for the concern of the Cabinet and not of this Court.
Once the act is considered to have been carried out by the Cabinet or
consequent to a Cabinet decision then it necessarily follows the
President- member and Head of the Cabinet is part of it and in the
collective nature of the Cabinet decision. Hence the decision of the
Cabinet to enter into a CFA with the LTTE cannot be said to have been
taken without the concurrence of the President.
PerSriskandarajah, J.:
“As a matter of fact this agreement was not terminated by the Governments of
Sri Lanka even though this was in operation during two Executive
Presidents of the Republic and two Governments of different political
parties – this shows the desire of the President and the consecutive
governments to have the said agreements in force to achieve the objects
enumerated in the preamble of the CFA”.
(3) Cabinet which is headed by the President and which is in charge of the
direction and the control of the Government could take a policy decision
to enter into an agreement with the LTTE and the 1 st respondent who was
the Prime Minister and a member of the Cabinet could enter into an
agreement for and on behalf of the Government of Sri Lanka.
Once a policy decision is taken by the Cabinet to enter into a CFA with the
LTTE, it could be implemented by the Executive.
(4) The petitioner’s contention that the CFA binds the government not to
prosecute the violators of the Prevention of Terrorism Act (PTA) is
untenable. The gazetted regulations show that, the violations of the PTA
are proceeded while the CFA is in full force.
(5) The challenge of the petitioner that the CFA is in violation of the concept
of State and Sovereignty cannot be maintained. Judicial Review could be
based upon the legal rules which regulate the use of governmental power.
The challenges are based on the elementary concept of illegality,
irrationality, proportionality and procedural impropriety. The petitioner
cannot complain to this Court in judicial review proceedings that the CFA
alienated the Sovereignty of the people or violates the concept of State.
(6) The preamble to CFA sets out the intention of parties. The short and
simple definition that can be given to the CFA is that it is a value decision
attached to efforts to resolve a conflict. From the preamble it is clear that
this document is a policy document on a political issue. It is axiomatic that
the contents of a policy document cannot be read and integrated as
statutory provisions. Too much of legalism cannot be imported in
understanding the scope and meaning of the clauses contained in policy
formulations.CA Tilwin Silva v Ranil Wickremasinghe and Others 17
For a policy decision to have legal consequences or legal impact that
policy decision should have been taken either by invoking a statutory
provision or statutory power should have been conferred on the said
decision, it is pertinent to note that neither statutory provision had been
invoked nor statutory power had been conferred on the CFA.
(7) CFA is a mere decision of policy to build confidence between parties to
find a negotiated solution to the ongoing ethnic conflict in Sri Lanka. As
there is no statutory power conferred on the CFA or involved on the
termination of the CFA it has no legal consequences or legal impact, it
cannot be tested in Court for its legality and the CFA is not amenable to
judicial review.
APPLICATION for a writ of certiorari I prohibition.
Cases referred to:
(1) Parameswary Jayathevanv Attorney-General and others 1992 2 Sri LR
337 at 360.
(2) In Re the 13th Amendment to the Constitution and the Provincial Council
Act 1982 2 Sri LR 312 at 322.
(3) In Re the 19th Amendment to the Constitution 2002 3 Sri LR 85.
(4) Wimal Weerawansa and 13 others v Attorney-General and 3 others
(P Toms Case).
(5) Ram Jawa v State of Punjab 1955 2 Sri LR at 235 and 236.
(6) Blackburn v Attorney -General 1971 1 WLR 1037.
(7) Premachandra v Major Montague Jayawickrama 1994 Sri L.R. 90 at 107.
(8) Baker v Can (1962) 369 US 186.
(9) Bhut Nath v State of West Bengal AIR 1974 SC 806, 811
(10) BALCO Employees Union (Legal) v Union of India and others AIR 2002
SC 350.
(11) Narmada Bachao Andolan v Union of India and others 2000 10 SSC 664
at 763.
Manohara de Silva PC with Udaya Gammanpila, Pasan Gunasena, Bandara
Thalagune and Anusha Perusinghe for the petitioner.
Harsha Fernando SSC for the 1st, 26th and 28th to 60th respondents.
Shibly Aziz PC with A.P. Niles and Rohana Deshapriya for the 3rd to 25th
respondents.
2nd respondent absent and unrepresented.
Cur.adv.vult.18 Sri Lanka Law Reports [2007] 2SriL.R
March 6, 2007
SRISKANDARAJAH, J.
The Petitioner is the General-Secretary of the Janatha Vimukthi
Peramuna (JVP) which is a recognized political party in Sri Lanka.
The 1st respondent was the Prime Minister of Sri Lanka during the
relevant time and the 2nd respondent, is the Leader of the
Liberation Tigers of Tamil Eelam, (LTTE), 3rd to the 25th
respondents were members of the Cabinet of Ministers of Sri Lanka
during the relevant time. Consequent to the Parliamentary General
Election which was held on 2nd of April 2004 a new Cabinet of
Ministers have been appointed and the new Cabinet of Ministers
are added as the 27th to the 59th respondents.
The petitioner in this application has sought a writ of Certiorari
to quash whole or a part of the ‘Agreement on a ceasefire between
the Government of the Democratic Socialist Republic of Sri Lanka
and the Liberation Tigers of Tamil Eelam’ marked as P5 and also a
writ of Prohibition restricting and or prohibiting the respondents
from giving effect to and or acting in any manner to give effect to
the decision and or undertaking in the said agreement in whole or
in part. The said agreement is hereinafter referred to as CFA.
The CFA in its preamble states:
“The overall objective of the Government of the Democratic
Socialist Republic of Sri Lanka (hereinafter referred to as the
GOSL) and the Liberation Tigers of Tamil Eelam (hereinafter
referred to as the LTTE) is to find a negotiated solution to the
ongoing ethnic conflict in Sri Lanka.
The GOSL and the LTTE (hereinafter referred to as the Parties)
recognize the importance of bringing an end to the hostilities and
improving the living conditions for all inhabitants affected by the
conflict. Bringing an end to the hostilities is also seen by the
parties as a means of establishing a positive atmosphere in
which further steps towards negotiations on a lasting solution
can be taken.
The parties further recognize that groups that are not directly
party to the conflict are also suffering the consequences of it.
This is particularly the case as regards the Muslim population.CA
Tilwin Silva v Ranil Wickremasinghe and Others
(Sriskandarajah, J.) 19
Therefore the provisions of this Agreement regarding the
security of civilians and their property apply to all inhabitants.
With reference to the above, the Parties have agreed to enter
into a ceasefire, refrain from conduct thai would undermine the
good intentions or violate the spirit of this agreement and
implement confidence-building measures as indicated in the
articles below.”
Article 1 of the CFA titled “Modalities of Ceasefire” and states
that the parties have decided to enter into a ceasefire. Articles 1.2
and 1.3 are titled “Military Operations” and deals with the cessation
of military action. Articles 1.4 to 1.8 are titled “Separation of forces”
and deals with the separation of the forces of the Government and
the LTTE. Articles 1.9 to 1.13 are titled “Freedom of movement” and
deal with the movement of the forces of each side through the
territories controlled by the other side. Article 2 is titled “Measures
to restore normalcy” and deals with various “Confidence – building
measures”. Article 3 is titled “The Monitoring Mission” and deals
with the setting up of an international monitoring mission. Article 4
is a miscellaneous provision, and is titled “Entry into force,
amendments and termination of the Agreement”. It is an admitted
fact that the CFA came into force on 23.2.2002 and is still in force.
The petitioner submitted that by the CFA, the aforementioned
1st respondent has agreed to bind the government of Sri Lanka as
enumerated in his petition in paragraph 9(a) to (k). He contended
that the 1st respondent when he signed the CFA was only the
Prime Minister of Sri Lanka and he was not clothed with any power,
authority or jurisdiction to bind the Government of the Democratic
Socialist Republic of Sri Lanka in the said CFA.
The petitioner further contended that the 1st respondent in his
capacity as the Prime Minister is not a member or an agent of the
Executive of the Republic. The executive power of the People shall
be exercised by the President of the Republic under Article 4(b) of
the Constitution of the Democratic Socialist Republic of Sri Lanka
(hereinafter referred to as Constitution). According to Article 43(1)
of the Constitution, there shall be a Cabinet of Ministers charged
with the direction and control of the Government of Sri Lanka. It
was held in Parameswary Jayathevan v Attorney-General and20 Sri Lanka Law Reports [2007] 2SriL.R
others?1) at 360 that the Cabinet can exercise certain executive
powers. In Re the 13th Amendment to the Constitution and the
Provincial Council Bill2) at 322, it was held that Provincial
Governors can exercise the executive power of the President.
However the petitioner contended that the Prime Minister as a
member of the Cabinet or otherwise cannot exercise the executive
power of the President. The Prime Minister is merely the member
of Parliament who in the President’s opinion is mostly likely to
command the confidence of Parliament (Article 43(3) of the
Constitution). Accordingly, the Prime Minister’s post is in the
Legislature and not in the Executive. The Supreme Court held in Re
the 19th Amendment to the Constitution®) that the Executive
cannot alienate its powers or functions to the Legislature. Hence
the 1st respondent has no capacity to enter into an agreement on
behalf of the Government of Sri Lanka.
The petitioner contended that whereas the President of the
Democratic Socialist Republic of Sri Lanka is the Head of the State,
the Head of the Executive and of the Government and the
Commander in Chief of the Armed Forces, vide Article 30(1 )of the
Constitution and vested with the executive power of the Republic of
Sri Lanka including the defence of Sri Lanka vide Article 4(b) of the
Constitution, the President was neither a party nor had given
concurrence to the CFA. The petitioner relied on a news item which
appeared in the ‘Island’ newspaper of 23.2.2002 marked P6 which
news item stated “the Presidential Secretariat stated that the
President was only informed of the said purported agreement only
after the 2nd respondent had placed his signature and just few
hours prior the 1st respondent was scheduled to place his
signature thereon. The President had expressed her surprise and
concern with regard to the manner in which this purported
agreement had been prepared.”
The petitioner admitted (in paragraph 13 of his affidavit) that the
said agreement had been briefed by the 1 st respondent the Prime
Minister to the Cabinet consisting of the 3rd to the 25th
respondents and a decision was taken to enter into the CFA.
Before considering the capacity of the 1st respondent (The
Prime Minister) to enter into the CFA it is important to consider theCA
Tilwin Silva v Ranil Wickremasinghe and Others
(Sriskandaraiah, J.) 21
exercise of the Executive power under the Constitution.
The President of the Republic of Sri Lanka is the Head of the
State the Head of the Executive and the Head of the Government
(Article 30(1) of the Constitution). The Cabinet which consists of the
President (as the member and the head of the Cabinet of
Ministers), the Prime Minister (who is a member of the Cabinet) and
the Cabinet of Ministers, is in charge of the direction and the control
of the Government of the Republic and they are collectively
responsible to Parliament (Article 43(1) of the Constitution). When
these provisions are considered in the light of the concept of
“collective responsibility” of the Cabinet, the President and the
Cabinet are part of one unit that is collectively responsible.
When commenting on the confidentiality and collective
responsibility of the Cabinet a former Judge of the Constitutional
Court Joseph A.L. Cooray in the Book titled”Constitutional and
Administrative Law of Sri Lanka” – 1995 at page 191 stated:
“The proceedings of the Cabinet of Ministers are secret and
confidential. The secrecy of Cabinet decisions is necessary for
arriving at a compromise and agreement through frank
discussions among the Ministers under the direction of the
President, as Head of the Executive and the Cabinet. This
practice gives effect to the principles of public unanimity and
collective responsibility and also tends to promote strong and
stable government.”
The deliberation within the Cabinet amongst it members
including the Head of the Cabinet (the President of Sri Lanka) is a
matter for the concern of the Cabinet and not of this court. The
Supreme Court in Wimal Weerawansa and 13 others v Attorney
General and 3 others^4) when dealing with the Communications
between the President and the Cabinet held thus;
“in this instance the MOUs has been tabled in Parliament and
there is no evidence before this court that the Cabinet of
Ministers has not been apprised of the MOU at the time of its
execution. In any event if there is a fault in these respects on the
part of the President, they are matters for the immediate
concern of the Cabinet of Ministers and Parliament and not of
this Court…”22 Sri Lanka Law Reports [2007] 2SriL.R
Therefore, once an act is considered to have been carried out
by the Cabinet or consequent to a decision of the Cabinet, then it
necessarily follows that the President who is a member of the
Cabinet of Ministers and Head of the Cabinet of Ministers (Article
43(2) of the Constitution) is part of it and and is clothed in the
collective nature of the cabinet decision. Hence the decision of the
Cabinet to enter into a CFA with the 2nd respondent cannot be said
to have been taken without the concurrence of the President.
In any event Article 4.4 of the CFA provides for the unilateral
termination of the CFA. It provides:
“This agreement shall remain in force until notice of termination
is given by either party to the Royal Norwegian Government.
Such notice shall be given fourteen (14) days in advance of the
effective date of the termination.”
As contended by the petitioner if the President of the Republic
at the time of the execution of this agreement or at any time
thereafter expressed his dissatisfaction of the said agreement, as
the Head of the Government of Sri Lanka the President would have
unilaterally terminated the said agreement. As a matter of fact this
agreement was not terminated by the Government of Sri Lanka
even though this was in operation during two Executive Presidents
of the Republic and two governments of different political parties.
This shows the desire of the President and the consecutive
governments’ to have the said agreement in force to achieve the
objects enumerated in the preamble of the said agreement.
Once a policy decision is taken by the Cabinet to enter into a
CFA with the 2nd respondent it could be implemented by the
Executive.
Even though the Constitution has not specifically provided for
the separation of powers the legislative scheme of the Constitution
has provided for a functional separation of powers. This could be
seen in Article 4 of the Constitution and elaborated under separate
Chapters of the Constitution. The provisions relating to Executive
Powers is contained in Chapters VII, VIII and IX, the Legislative
Powers in Chapters X to XII and the Judicial Power in Chapters XV
and XVI.CA
Tilwin Silva v Ranil Wickremasinghe and Others
(Sriskandarqjah. J.) 23
By virtue of Article 4(b) of the Constitution the executive power
shall be exercised by the President. Even though the executive
power cannot be comprehensively defined, the Indian Supreme
Court in Ram Jawa v The State of Punjab^5) observed:
“It may not be possible to frame an exhaustive definition of what
executive function means and implies. Ordinarily the executive
power connotes the residue of governmental functions that
remain after legislative and judicial functions are taken away,
subject of course, to the provisions of the Constitution or any
law.
The executive function comprises both the determination of
policy as well as carrying it into execution, the maintenance of
order, the promotion of social and economic welfare, the
direction of foreign policy, in fact the carrying on and supervision
of the general administration of the State.”
The Executive provided in the Constitution includes The
President (Chapter VII), The Cabinet of Ministers (Chapter VIII) and
The Public Service (Chapter IX). As executive power encompasses
a wide area, the President, while personally performing some of the
executive functions, operates the rest of the executive functions of
government through the Cabinet of Ministers and Public Officers.
The President appoints the Prime Minister (Article 43(2) of the
Constitution) a Member of Parliament who in his opinion is most
likely to command the confidence of Parliament. The President,
Prime Minister and the Ministers are members of Cabinet (Article
43(2) of the Constitution) and the Cabinet is responsible to the
Parliament (Article 43(1) of the Constitution). In relation to the
appointment of Cabinet of Ministers it is laid down that the
President shall make such appointment in consultation with the
Prime Minister. However there is no obligation on the part of the
President to follow the advice of the Prime Minister. In these
contexts the Prime Minister has a pivotal role to play, as being the
Member of the Cabinet and Member of Parliament who commands
the confidence of Parliament, especially when the President and
the majority of the members of Parliament are represented by two
different political parties which has different political premise. In
this instant the Prime Minister was the head of the governing party24 Sri Lanka Law Reports [2007] 2 Sri LR
and the President belongs to the party which was in the opposition.
Hence the submission of the petitioner that the post of the Prime
Minister is in the legislature and not in the executive has no merit.
In Wimal Weerawansa and 13 others v Attorney-General and 3
others (supra) the Supreme Court observed that there is no
illegality, in the President of the Republic entering into a
Memorandum of Understanding for the establishment of a Tsunami
Operation Management Structure (P-TOMS), and in this instant the
MOU has been agreed and accepted on 24.6.2005 by the
Secretary, Minister of Relief, Rehabilitation and Reconstruction (the
3rd respondent in the said case) for and on behalf of the
Government of the Democratic Socialist Republic of Sri Lanka
(GOSL) and the 4th respondent (in the said case) for and on behalf
of the Liberation Tigers of Tamil Eelam (LTTE). In the above
circumstances a Public officer has agreed and accepted for and on
behalf of the Government of Sri Lanka. As I have discussed above
the President, while personally performing some of the executive
functions, operates the rest of the executive functions of
Government through the Cabinet of Ministers and Public Officers.
Hence the submission of the petitioner that the Prime Minister
cannot sign an agreement for and on behalf of the Government of
Sri Lanka has no merit.
From the above analysis it is clear that the Cabinet which is
headed by the President and which is in charge of the direction and
the control of the Government could take a policy decision to enter
into an agreement with the 2nd respondent and the 1st respondent
who was the Prime Minister and the member of the Cabinet could
enter into an agreement for an on behalf of the Government of Sri
Lanka. In view of the above the submissions of the petitioner that
the 1st respondent is not clothed with any power or authority or
jurisdiction to sign the CFA, in as much as the President of the
Democratic Socialist Republic is the Head of the State and the 1 st
respondent has usurped the powers of the President by entering
into the aforesaid agreement and it is in violation of Article 30 of the
Constitution, have no basis.
The petitioner has also challenged the said agreement on the
basis that no one has authority to sign any agreement with the 2nd
respondent and /or the LTTE. The said agreement namely;’Agreement on a ceasefire between the Government of the
Democratic Socialist Republic of Sri Lanka and the Liberation
Tigers of Tamil Eelam’ (P5) was signed by the 1 st respondent with
the 2nd respondent the leader of the LTTE. The petitioner
contended as the LTTE was proscribed by the Government of Sri
Lanka under the Prevention of Terrorism Act, any agreement
signed by any body including the 1st respondent with the LTTE is
illegal and bad in law.
This question was dealt with by the Supreme Court in Wimal
Weerawansa and 13 others v Attorney-General and 3 others
(supra). Where the Chief Justice Sarath N. Silva when deciding the
alleged infringement of fundamental rights relate to the
Memorandum of Understanding (MOU) for the establishment of a
Tsunami Operation Management Structure (P-TOMS), which has
been agreed and accepted on 24.6.2005 by the 3rd respondent (in
the said case), the Secretary, Ministry of Relief Rehabilitation and
Reconstruction for and on behalf of the Government of the
Democratic Socialist Republic of Sri Lanka (GOSL) and the 4th
respondent (in the said case) for an on behalf of the Liberation
Tigers of Tamil Eelam (LTTE) held;
“Mr. S.L. Gunasekera, contended that it is illegal to enter into the
MOU with the LTTE which he described as a terrorist
organisation that caused tremendous loss of life and property in
this country. The contention is that even assuming that the
President could enter into a MOU for the object and reasons
stated in the preamble, the other party to the MOU is not an
entity recognised in law and should not be so recognised due to
antecedent illegal activities of the organisation.
In this regard I have to note that the matter so strenuously urged
by Counsel cannot by itself denude the status of the 4th
respondent to enter into the MOU. The circumstances urged by
Counsel cannot and should not have the effect of placing the 4th
respondent and the Organisation that he seeks to represent
beyond the rule of law. We have to also bear in mind that
already a Cease-Fire Agreement has been entered into on
23.2.2002 between the Government of Sri Lanka and the LTTE,
which according to section 2(b) of the MOU “shall continue in full
force and effect”.26 Sri Lanka Law Reports [2007] 2SriL.R
In these circumstances there is no illegality in entering into the
MOU with the 4th respondent…”
In this judgment the Supreme Court has unequivocally held
that the Government entering into an MOU with the LITE is not
illegal. Therefore the petitioner’s claim that any agreement
signed by anybody including the 1st respondent with the LTTE
is illegal and bad in law is untenable.
The petitioner also challenged the said agreement on the basis
that certain clauses mentioned in the agreement binds the
government and thereby alienated the sovereignty of the people
which includes the power of government. The. petitioner submitted
that the 1st respondent agreed to bind the Government in the
following manner which violates certain Articles of the Constitution.
a) by agreeing to stop all the offensive military operations against
the LTTE which is a proscribed organisation under the provisions
of the Prevention of Terrorism Act inter-alia in violation of Articles
1,2, 3,4,27, 28,30,157A of the Constitution,
b) by restricting the right of movement of Sri Lanka Armed
Forces inter-alia in violation of Articles 1, 2, 3, 4,14, 27, 28,
30, 157A of the Constitution,
c) by providing confidential information with regard to defence
localities to an organisation called the Sri Lanka Monitoring
Mission consisting of non-citizens inter-alia in violation of
Articles 1, 2, 3, 4, 27, 28, 30, and 157A of the Constitution,
d) by restricting the use and possession of ammunition and
other military equipment by the armed forces inter-alia in
violation of Articles 1,2,3,4,27, 28, 30, 157A of the
Constitution,
e) by restricting the Armed services personnel from entering into
areas specified in article 1.4 and 1.5, inter-alia in violation of
Articles 1, 2, 3, 4, 27, 28, 30 and 157Aof the Constitution,
f) by demarcating areas in the territory of Sri Lanka to which the
armed forces or any agency of the government would not
have access and thereby handing over and/or granting full
control of certain areas to an armed terrorist organisationTilwin Silva v Ranil Wickremasinghe and Others
CA (Sriskandarajah, J.) 27_
inter-alia in violation of Articles 1,2,3, 4, 27, 28, 30, 157A of
the Constitution,
g) by permitting members of an armed terrorist organisation
namely the LTTE to man check points inter-alia in violation of
Articles 1,2,3, 4, 27, 28, 30, 157A of the Constitution,
h) by declaring that the Prevention of Terrorism Act entered into
by Parliament and presently part of the law of the land be
made ineffective and agreeing not to prosecute violators of
the said Act under the provisions of the said Act inter-alia in
violation of Articles 3, 4(a), 27, 28, 75 and 76 of the
Constitution and by usurping the legislative and judicial
power of the people,
i) by abdicating the power of the government by restricting the
right of the armed forces to protect the territorial integrity of
the State.
j) whilst permitting LTTE to carry and possess arms and
denying other Tamil Groups (Opposed to the LTTE) and other
political parties to carry weapons thereby denying equality
before law in violation of the Article 12(1) and 12(2) of the
Constitution.
k) compelling the Sri Lankan Government to absorb illegal
armed cadres to the Sri Lankan armed forces in violation of
the criteria of recruitment under the Army Act, Navy Act and
Air Force Act and the breach of Article 12(1) and 12(2) of the
Constitution.
The learned Counsel for the petitioner strenuously argued that
by the CFA the Prevention of Terrorism Act entered into by
Parliament and presently part of the law of the land be made
ineffective by agreeing not to prosecute violators of the said Act and
it is a violation of Article 75 and 76 of the Constitution.
This Court could take judicial notice of the fact that the
Emergency (Prevention and Prohibition of Terrorism and Specified
Terrorist Activities) Regulations No. 7 (sic) of 2006 published in the
Gazette Extraordinary No. 1474/5 of 6th December 2006 provides
for the prosecution of the violators of the Prevention of Terrorism
Act. Regulation 6 of the said regulation prohibits any person, group,28 Sri Lanka Law Reports [2007] 2SriL.R
groups of persons or an organisation engaging in “specified
terrorist activity”. Regulation 20 defines “specified terrorist Activity”
i.e. “Specified terrorist activity” means an offence specified in the
Prevention of Terrorism Act, No. 48 of 1979 and Regulation 10
provides that “Any person who acts in contravention of Regulation
6 of these regulations shall be guilty of an offence, and shall on
conviction by the High Court be sentenced to a term of
imprisonment of not less than ten years and not exceeding twenty
years”. This shows that the violators of the Prevention of Terrorism
Act are prosecuted while the CFA is in full force. Therefore the
petitioner’s contention that the CFA is in violation of Article 75 and
76 is untenable.
The petitioner also contended that certain provisions of the CFA
mentioned above violate Articles 27 and 28 of the Constitution;
namely the Directive Principles of State Policy and Fundamental
Duties. Article 29 of the Constitution specifically provides that no
question of inconsistency with the provisions in Chapter VI of the
Constitution i.e. Article 27 and Article 28 shall be raised in any
Court or Tribunal. Therefore the inconsistency of the CFA if any to
Article 27 and Article 28 of the Constitution is not justiciable.
The petitioner’s grievance that the CFA violates Article 30 of the
Constitution; namely the powers of the President of the Republic,
has already been analysed by me in this Order in detail and I have
concluded that the submission that CFA violate Article 30 of the
Constitution has no basis.
The petitioner contended that certain clauses in the CFA is in
violation of Article 12(1), 12(2) and 14 of the Constitution. These
Articles are in relation to Fundamental Rights. The jurisdiction of
this court is ousted by Article 126 of the Constitution in deciding
questions affecting fundamental rights. Hence the petitioner cannot
challenge the CFA on the basis that it violates Article 12(1), 12(2)
and 14 of the Constitution in judicial review proceedings in the
Court of Appeal under Article 140 of the Constitution.
The petitioner also contended by the provisions of the CFA
mentioned above the sovereignty of the People was alienated and
it violates Articles 1, 2, 3, 4, and 157A of the Constitution. These
Articles provides for the ‘State’ and ‘Sovereignty’.CA
Tilwin Silva v Ranil Wickremasinghe and Others
(Sriskandarajah, J.) 29
In Blackburn v Attorney-Generate Lord Denning M.R. quoted
with approval an article by Professor H.W.R. Wade (“The Basis of
Legal Sovereignty”) in the Cambridge Law Journal, 1955, at p. 196
in which he said that “sovereignty is a political fact for which no
purely legal authority can be constituted….”.
In Administrative Law Ninth Edition at page 9 the learned
authors H.W.R. Wade & C.F. Forsyth stated:
“The most obvious opportunities for theory lie on the plane of
constitutional law. Does the law provide a coherent conception
of the state? Is it, or should it be, based on liberalism,
corporatism, pluralism, or other such principles? What are its
implications as to the nature of law and justice? More
pragmatically, should there be a separation of powers, and if so
how far? Is a sovereign parliament a good institution? Is it right
for parliament to be dominated by the government? Ought there
to be a second chamber? The leading works on constitutional
law, however, pay virtually no attention to such question, nor can
it be said that their authors’ understanding of the law is
noticeably impaired. The gulf between the legal rules and
principles which they expound, on one hand, and political
ideology on the other hand, is clear and fundamental, and the
existence of that gulf is taken for granted.”
Judicial review could be based upon the legal rules which
regulate the use of governmental power.The challenges are based
on the elementary concept of illegality, irrationality, proportionality
and procedural impropriety. The petitioner cannot complain to this
Court in judicial review proceedings that the CFA alienated the
Sovereignty of the People or violates the concept of State as the
concept of State and Sovereignty are political ideology and no
, purely legal authority can be constituted. Therefore the challenge of
the petitioner that the CFA is in violation of Article 1,2,3,4 and 157A
cannot be maintained in this proceeding.
The Court when considering the issue of notice on the
respondents has to consider whether the petitioner has at least an
arguable case to seek writ of Certiorari or writ of Prohibition in
relation to CFA or parts of CFA. In this regard I have considered the
merits of the petitioner’s application. Now I proceed to consider a30 Sri Lanka Law Reports [2007] 2 Sri LR
more fundamental question that is whether the CFA itself is
amenable to judicial review.
The 1st, 26th and 28 to 60th respondents submitted that the
very nature of the said agreement although the word ‘agreement’ is
used the nature and its forms differs drastically to that of an
agreement or contract as understood in a sense as enforceable by
a Court. The subject matter itself is that of policy on a political issue,
the nature and the context of which is outside the judicial space.
The preamble of this agreement sets out the intention of the
parties. The short and simple definition that can be given to the
CFA is that it is a value decision attached to efforts to resolve a
conflict. This demonstrates that there are certain qualitative
considerations that would be taken into account in arriving at this
value judgment. A prima facie reading of the preamble and the
contents of the CFA clearly points out that the ingredients that may
have gone into the decision to enter into the CFA are beyond the
realm of judicial review. The 3rd to 25th respondents also submitted
that the present application involves a political question which is not
amenable to judicial review and they relied on the following cases
in support of their contention; Premachandra v Major Montague
Jayawickremap) Baker v Carri8) and But Nath v State of West
Bengal.®
From the preamble of the CFA it is clear that this document is a
policy document on a political issue. It is axiomatic that the contents
of a policy document cannot be read and interpreted as statutory
provisions. Too much of legalism cannot be imported in
understanding the scope and meaning of the clauses contained in
policy formulations.
The Supreme Court of India in BALCO Employees Union (Regd.) v
Union of India and others*™) quoted with approval the following
observations made in the majority decision in Narmada Bachao
Andolan v Union of India and others.^)
“While protecting the rights of the people from being violated in any
manner utmost care has to be taken that the court does not (SIC)
its jurisdiction. There is, in our constitutional framework a fairly clear
demarcation of powers. The Court has come down heavily
whenever the executive has sought to impinge upon the Court’s
jurisdiction.CA
Tilwin Silva v Ftanil Wickremasinghe and Others
(Sriskandaraiah. J.) 31
At the same time, in exercise of its enormous power the Court
should not be called upon to or undertake governmental duties or
functions. The Courts cannot run the Government nor can the
administration indulge in abuse or non-use of power and get away
with it. The essence of judicial review is a constitutional
fundamental. The role of the higher judiciary under the Constitution
casts on it a great obligation as the sentinel to defend the values of
the Constitution and the rights of Indians. The Courts must,
therefore, act within their judicially permissible limitations to uphold
the rule of law and harness their power in public interest. It is
precisely for this reason that it has been consistently held by this
Court that in matters of policy the Court will not interfere. When
there is a valid law requiring the Government to act in a particular
manner the Court ought not to, without striking down the law, give
any direction which is not in accordance with law. In other words,
the court itself is not above the law.
In respect of public projects and policies which are initiated by the
Government the Courts should not become an approval authority.
Normally such decisions are taken by the Government after due
care and consideration. In a democracy welfare of the people at
large, and not merely of a small section of the society, has to be the
concern of a responsible Government. If a considered policy
decision has been taken, which is not in conflict with any law or is
not mala fide, it will not be in public interest to require the Court to
go into and investigate those areas which are the function of the
executive. For any project which is approved after due deliberation
the Court should refrain from being asked to review the decision just
because a petitioner in filing a PIL alleges that such a decision
should not have been taken because an opposite view against the
undertaking of the project, which view may have been considered
by the Government, is possible. When two or more options or
views are possible and after considering them the Government
takes a policy decision it is then not the function of the Court to go
into the matter afresh and, in a way, sit in appeal over such policy
decision”.
and held:. “In a democracy it is the prerogative of each elected
Government to follow its own policy. Often a change in
Government may result in the shift in focus or change in economic32 Sri Lanka Law Reports [2007] 2SriL.R
policies. Any such change may result in adversely affecting some
vested interests. Unless any illegality is committed in the execution
of the policy or the same is contrary to law or mala fide, a decision
bringing about change cannot per se be interfered with by the
Court.”
The government is free to formulate its own policy and it is in public
interest the Courts will not go into and investigate these policy
decisions unless it is illegal, contrary to law or mala fide. But on the
other hand the Court will not consider the illegality or mala fide of a
policy decision unless the said decision provides legal consequences
or legal impact. The Court has nothing to do with mere decision of
policy. For a policy decision to have legal consequences or legal
impact that policy decision should have been taken either by invoking
a statutory provision or statutory power should have been conferred on
the said decision. It is pertinent to note that neither statutory provision
had been invoked nor statutory power had been conferred on the CFA.
H.W.R. Wade & C.F. Forsty in Administrative Law Ninth Edition at
page 345 the authors stated:
“A necessary corollary is that, as usual throughout administrative
law, we are concerned with acts of legal power, i.e. acts which,
if valid; themselves produce legal consequences (emphasis
added). Courts of law have nothing directly to do with mere
decisions of policy, such as decisions by the government that
Britain shall join the European Communities (even though a treaty
is concluded) or that grammar schools shall be replaced by
comprehensive schools. Such decisions have no legal impact
until statutory powers are conferred or invoked. But as soon
as Parliament confers some legal power it becomes the
business of the courts to see that the power is not exceeded
or abused” (emphasis added).
In Blackburn v AG (supra) Mr. Blackburn challenged an agreement
in judicial review proceedings for a declaration that the said agreement
is ultra viras and null and void on the basis that the said agreement
entered into by the Government affects the sovereignty of the British
Nation. Lord Denning delivering the Judgment held: “fnaf the said
application is premature as the said agreement has no legal
consequence and the Court consider the legality of the agreement only
after the Parliament confers legal power on the said agreement.”Kariyawasam v Southern Provincial
SC Road Development Authority and 8 Others 33
KARIYAWASAM
v ‘
SOUTHERN PROVINCIAL ROAD DEVELOPMENT
AUTHORITY AND 8 OTHERS
SUPREME COURT
SHI RANEE TILAKAWARDANE, J.
DISSANAYAKE, J. AND
AMARATUNGA, J.
S.C. APPLICATION NO. 157/2006
Fundamental rights – Article 126(2) of the Constitution – Has the petitioner
filed the application within the period prescribed by Article 126(2) of the
Constitution ? – Section 13(1) of the Human Rights Commission Act, No. 21 of
1996 – Affidavit – Jurat.
At the hearing the respondents raised three preliminary objections, namely;
CFA is a mere decision of policy to build confidence between
parties to find a negotiated solution to the ongoing ethnic conflict in Sri
Lanka; as there is no statutory power conferred on the CFA or invoked
on the formulation of the CFA it has no legal consequences or legal
impact. Therefore it cannot be tested in Court for its legality and hence
the CFA is not amenable to judicial review. Even a party to this
agreement or a person who has sufficient interest in this agreement
cannot seek a Public law remedy for the enforcement of the provisions
of the CFA or to quash or prohibit a decision taken to violate any of the
provisions of the CFA. Similarly the petitioner also cannot make an
application for a writ of Certiorari or Prohibition to quash, or prohibit the
operation of the said Cease Fire Agreement.
In the first part of my Order I have analysed the merits of this
application and I have held that this application has no legal basis. In
the second part of my Order I have analysed whether the CFA is
justiciable and I have held that the CFA is not justiciable. As there is no
legal basis for this application and as it is misconceived in law this
Court refuses to issue notice on the respondents.
Notice refused.34 Sri Lanka Law Reports [2007] 2 Sri LR
(1) Application of the petitioner is not filed within time;
(2) The affidavit filed by the petitioner in support of his application is
defective;
(3) The petitioner has not disclosed that he had made an application to
the Human Rights Commission on the same matter.
Held:
(1) An application for alleged infringement of a fundamental right which
has been filed in the Human Rights Commission within one month
from the alleged infringement of a fundamental right is pending
before the Commission shall not be taken into account in
computing the period of one month within which an application may
be made to the Supreme Court in terms of Article 126(2) of the
Constitution.
(2) The jurat (of the affidavit) contains all necessary particulars
including the date of affirmation and attestation. There is no
requirement that the Justice of the Peace must put the date below
his signature in addition to the date given in the jurat. Failure to put
the date below the J.P.’s signature cannot affect the validity of the
affidavit when the date of attestation is embodied in the jurat.
Per Gamini Amaratunga J. –
” However, where the J.P. has written below his signature a date
different to the date given in the jurat, such writing creates a doubt
not only with regard to the exact date of affirmation and attestation,
but also with regard to the other particulars given in the jurat. If this
doubt is not cleared by a reasonable explanation consistent with
petitioner’s contention the affidavit is liable to be rejected as
defective
(3) The failure to disclose by the petitioner in his petition that he had
made an application to the Human Rights Commission on the same
matter is not a ground to reject this application as he has not gained
any undue advantage by his failure to refer to it.
APPLICATION under Article 126(1)
On a preliminary objection being taken.
Saliya Pieris with Sapumal Bandara for the petitioner.
D.S. Wijesinghe, P.C. with Kaushalya Molligoda for the 1 st, 2nd, 3rd and 8th
respondents.
Cur.adv.vultKariyawasam v Southern Provincial
SC Road Development Authority and Others (Gamini Amaratunga,J.) 35
July 5, 2007
GAMINI AMARATUNGA, J.
The petitioner, a Technical Training Coordinator of the Southern
Provincial Road Development Authority has filed this fundamental
rights application, dated 28.4.2006 and filed on 2.5.2006,
challenging his transfer from the Head Office at Galle to the
Regional Engineer’s Office at Elpitiya. The transfer has been made
by letter dated 14.3.2006. The reliefs sought by the petitioner are a
declaration that the respondents have violated his fundamental
right guaranteed by Article 12(1) and an order quashing the
impugned transfer.
At the hearing before us the learned President’s Counsel for the
1st to 8th respondents raised three preliminary objections, namely;
(1) That the application of the petitioner is out of time.
(2) That the affidavit filed by the petitioner in support of his
application is defective for the reason that the date written
below the signature of the Justice of the Peace who attested
the petitioner’s affidavit is different from the date given in the
jurat.
(3) That the petitioner has failed to disclose that he had made
an application to the Human Rights Commission on the
same matter.
After oral submissions, both parties have filed their written
submissions on the preliminary objection.
The petitioner’s application for relief against the impugned
transfer dated 14.3.2006 has been filed on 2.5.2006. On the face of
it, it is clearly out of time for not being within the period of one
month prescribed by Article 126(2) of the Constitution.
The learned Counsel for the petitioner submitted that the
petitioner has made an application to the Human Rights
Commission seeking relief against the impugned transfer. The
petitioner has not averred this fact in his application. However
along with his written submissions the learned Counsel has filed a
copy of the petitioner’s application made to the Matara branch of
the Human Rights Commission. It is dated 27.3.2006 and the date36 Sri Lanka Law Reports [2007] 2 Sri LR
stamp on it indicates that it has been received by the Matara
branch on the same date. The Copy of a letter dated 14.6.2006
written by the Regional Co-ordinating Officer of the Matara branch
of the Human Rights Commission to the 3rd respondent shows that
the Commission has sent two letters dated 28.3.2006 and
24.4.2006 to the 3rd respondent calling for a report on the
petitioner’s complaint and that the 3rd respondent had failed to
respond to those letters even by 14.6.2006.
According to section 13(1) of the Human Rights Commission Act
No. 21 of 1996, “where an inquiry into a complaint made by an
aggrieved party to the Human Rights Commission within one
month of the alleged infringement of a fundamental right is
pending before the Commission, the period within which such
inquiry is pending before the Commission shall not be taken
into account in computing the period of one month within
which an application may be made to the Supreme Court in
terms of Article 126(2) of the Constitution.”
The petitioner’s application to the Human Rights Commission
was within one month of the impugned transfer. The Human Rights
Commission, by calling for a report from the respondent Authority
has set in motion the process of holding an inquiry into the
petitioner’s application, but the Authority has failed to submit its
report to the Commission. In those circumstances, the petitioner is
entitled to claim the benefit conferred by section 13(1) of the
Human Rights Commission Act. I accordingly hold that the
petitioner’s application to this Court is not time barred.
The second objection is that the date given in the jurat of the
petitioner’s affidavit is different from the date written by the Justice
of the Peace (the J.P.) below his signature and therefore the
affidavit is defective. The date given in the jurat is “27th day of April
2006” and the date written below the J.P.’s signature is 2006.4.12.
The learned Counsel for the petitioner submitted that the petitioner
has signed the affidavit on 27th April 2006 before the JP but the
latter in writing the date below his signature had made a mistake by
writing the date as 2006.4.12. On the other hand the contention of
the learned President’s Counsel for the 1 st to 8th respondents was
that the date given by the J. P. coincides with the one month
requirement as the period of one month from the impugned transferKariyawasam v Southern Provincial
SC Road DevelopmentAuthority and Others (Gamini Amaratunga,J.) 37
letter expired on 14.4.2006. The learned President’s Counsel
submitted that the 13th and 14 April being public holidays on
account of the New Year, the probabilities are that the J.P. signed
the affidavit on 12th before the onset of the holidays.
A jurat “is a certificate of officer or person before whom writing
was sworn to. In common use the term is employed to designate
the certificate of the competent administering officer that writing
was sworn to by the person who signed it. “Black’s Law Dictionary
– 5th Ed.p.765. In other words, the jurat is the J.P.’s attestation
clause which is essential to the validity of an affidavit.
The jurat in the petitioner’s affidavit states that it was read over
and explained to the affirmant; that he understood its nature and
contents and that he affirmed and signed it on 27th day of April
2006 at Colombo. On the right hand side of the jurat the J.P. has
signed below the printed words “before me.” Thus the jurat contains
all necessary particulars including the date of affirmation and
attestation. There is no requirement that the J.P. must put the date
below his signature in addition to the date given in the jurat. The
failure to give the date below the J.P.’s signature cannot affect the
validity of the affidavit when the date of attestation is embodied in
the jurat.
However where the J.P. has written below his signature a date
different to the date given in the jurat, such writing creates a doubt
not only with regard to the exact date of affirmation and attestation,
but also with regard to the other particulars given in the jurat. If this
doubt is not cleared by a reasonable explanation consistent with
the petitioner’s contention that the date 2006.4.12 written below the
J.P.’s signature was a mistake made by the J.P., the affidavit is
liable to be rejected as defective.
The learned Counsel for the petitioner submitted that the
petitioner has signed the affidavit on 27.4.2006. The petition filed in
this Court is dated 28.4.2006, which was a Friday. The next two
days i.e. 29th and 30th April, 2006 were Saturday and Sunday. The
1st of May was a public holiday. The petitioner’s application has
been filed on 2.5.2006, which was the first working day after
28.4.2006. This sequence of events supports the petitioner’s
contention that the petitioner signed the affidavit on 27.4.2006.38 Sri Lanka Law Reports [2007] 2SriL.R
In the body of the affidavit, in paragraph 14, (paragraph 13 in the
petition) there is a reference to a letter dated 19.4.2006, sent by the
3rd respondent to the petitioner. A copy of that letter is attached to
the petition marked P10. It is the 3rd respondent’s reply to the
petitioner’s appeal dated 16.3.2006 sent to the 3rd respondent to
get the transfer cancelled (P8). The 3rd respondent in his affidavit
has admitted that the petitioner’s appeal against the transfer was
rejected by P10. If the affidavit had been prepared and signed by
the J.P. by 12.4.2006, the petitioner could not have referred to P10
dated 13.4.2006 in his affidavit. This intrinsic evidence contained in
the affidavit clearly shows that the affidavit had been prepared on a
date subsequent to 19.4.2006.
In considering the submission of the learned Counsel for the
petitioner that the date 2006.4.12, written below the J.P.’s signature
was a mistake, this Court can taken into account ordinary human
conduct as well. The date “27th day of April 2006” is printed in the
jurat. The J.P. had placed his signature parallel to the printed jurat,
towards the right hand edge of the same paper. In the absence of
reasons so compelling, this Court is unable to hold that the J.P. had
consciously and deliberately put the date as 2006.4.12 when the
jurat, parallel to his signature, has the date ’27th day of April’ in the
printed form.
The learned Counsel for the petitioner also submitted that the
date written by the J.P. appears to be 2006.4.17 and not 2006.4.12.
In fact in the way the date is written it is not clear whether the date
is 12 or 17. The learned Counsel for the petitioner submitted that
the J.P. in writing the date 27th had written figure 1 instead of figure
2. If the second figure in the date written by the J.P. is taken as 7,
it is consistent with the second figure of the date given in the jurat.
As pointed out earlier, in considering the ordinary human conduct it
is not possible to rule out the possibility of human error.
The petitioner’s reference in his affidavit to P10 dated 19.4.2006
is a clear indication that the affidavit could not have been prepared
and signed on a date prior to 19.4.2006. The date given in the Jurat
(27.4.2006) is consistent with the position that the affidavit had
been signed on 27.4.2006 (which is a date subsequent to P10
dated 19.4.2006). On the other hand the date 2006.04.12 (or 17)
written by the J.P. cannot be a correct date in view of the referencesc Janashakthi Insurance Co. Ltd v Umbichy Ltd. 39
in the body of the affidavit to P10 dated 19.4.2006. Thus the only
reasonable conclusion this Court can come to is that the date
written by the J.P. below his signature was an inadvertent error and
as such it cannot affect the validity of the jurat. Accordingly I hold
that the affidavit of the petitioner is not defective and the second
preliminary objection is also overruled.
The third preliminary objection is that in his petition the petitioner
has failed to disclose that he had made an application to the
Human Rights Commission on the same matter. It is true that in his
application the petitioner has not referred to his communication to
the Human Rights Commission. However by his failure to refer to
it, the petitioner has not gained any undue advantage and as such
the 3rd preliminary objection is not a ground to reject the
petitioner’s application. Accordingly I direct to list the petitioner’s
application for hearing on its merits.
SHIRANEE T1LAKAWARDANE, J. – I agree.
DISSANAYAKE, J. – I agree.
Preliminary objections overruled.
Matter set down for argument.
JANASHAKTHI INSURANCE CO. LTD.
v
UMBICHY LTD.
SUPREME COURT
S.N. SILVA, C.J.
JAYASINGHE, J.
SHIRANEE TILAKAWARDANE, J.
SC 26/99
HC CIVIL 187/96(1)
DC COLOMBO 13405/MR
JUNE 19, 2006
OCTOBER 25, 2006
DECEMBER 15.2006
JANUARY 26, 2007
Evidence Ordinance. Section 35, Evidence (Sp. Pro.) Act 14 of 1995 — Marine
Insurance – Breach of warranty of seaworthiness – Burden of Proof – on
whom? – Admissibility of documents – Documents maintained in the ordinary
course of business – Setting up of a different case in appeal – Permitted?40 Sri Lanka Law Reports [2007] 2 Sri LR
The defendant-appellant successor to the original insurer appealed against the
judgment of the Commercial High Court which awarded to the insured, the
plaintiff-respondent on two causes of action for breach of contract to pay the
sums insured on contracts of Marine Insurance, pertaining to the carriage of
consignment of cargo.
In appeal it was contended by the appellant that the High Court erred in its
application of the presumption, since there was no proof that the vessel had
set sail for Colombo and there was no proof of unauthorized deviation from the
normal route which discharged the insurer of liability and the plaintiff has failed
to prove that it complied with the Institution classification clause and as such
the claim is not maintainable and certain documents – telexes – have not been
proved and as such were inadmissible.
Held:
(1) The evidence on record reveals that the vessel left the Port of Mersin
and called at the port in Limersol due to engine trouble and from there
sailed to Thessaloki and the documents or record indicate clearly that
the shipment is to Colombo from Mersin via the Steam M.V. Elliot –
which established that the voyage contemplated was in fact the
voyage insured.
(2) Under the general law of insurance the burden of proving that a
warranty has been broken lies upon the insurers. The burden of proof
of breaches of conditions was on the insurer in accordance with the
ordinary rule that the onus of proving a breach of a condition of an
insurance policy which would relieve the insurer from liability in
respect of a particular loss was, unless his policy otherwise provided,
on the insurer.
Per Shiranee Tilakawardane, J.
“I do not believe there to be any doubt regarding the fundamental position
of Insurance Law that burden of proof related to an alleged breach of
warranty lies on the insurer alleging it – I cannot accept the contention of
the defendant-appellant that the burden of proving compliance with the
“Institute Classification clause” lies with the plaintiff-respondent”.
(3) The law of evidence provides that the documents maintained by the
party in the ordinary course of business can be produced by such
party as evidence. Section 35 (a) of the Evidence Ordinance permits
a witness who by reference to documents and studying the relevant
documents learns to speak on the facts disclosed by those
documents. The Director of plaintiff-respondent company has certified
in Court that the documents were maintained in the ordinary course of
business. There-is no impediment to the admissibility of this evidence
in the light of the provisions contained in the Evidence Ordinance.Janashakthi Insurance Co. Ltd v Umbichy Ltd.
SC (Shiranee Tilakawardane, J.) 41
Per Shiranee Tilakawardane, J.
“The defendant-appellant is prohibited from setting up a different case from
that set up at the trial, he cannot take up a case in appeal which differs from
that of the trial.”
APPEAL from a judgment of the Commercial High Court.
Cases referred to:
(1) Royster Guano Co. v Globe & Rutgers 19230 AMC 11 (St. NY)
(2) The Al Jubail iv 1982 Lloyds Rep. 637 (Singapore)
(3) Stebbing v Liverpool & London & Globe 1917 2 KB 42323
(4) Marshall v Emperor Life (1865) LR 1QB 235
(5) Parker v Potts – 1815 23 Dow 223
(6) Franco v Natush (18236) Tyr & Gv. 401
(7) Pickup v Thames and Mersey Marine Insurance (1878) 23 QBD 594 CA
(8) Bond Air Services Ire v Hill 1955 2 QB 417
(9) Barett v London General Insurance Co. Ltd. (1935) 1 KB 238.
Faiz Musthapha PC with Dinal Phillips for defendant-appellants.
K. Kanag-lswaran PC with K.M. Basheer Ahamed for plaintiff-respondent.
Cur.adv.vult
May 23, 2007
SHIRANEE TILAKAWARDANE, J.
This is an appeal by the successor to the original insurer, the
defendant-appellant, against the judgment of the Commercial High
Court dated 22nd April 1999, awarding the insured, the plaintiffrespondent, damages on two causes of action for breach of contract
to pay the sums insured on two contracts of marine insurance,
pertaining to the carriage of consignments of cargo from Turkey to Sri
Lanka.
The High Court awarded the insured an amount aggregating to Rs.
27,323,372.00 with legal interest thereon from 1st September 1987 to
the date of decree and thereafter on the aggregate amount of the
decree till payment in full and taxed costs.
The plaintiff-respondent instituted action against the defendantappellant on 24th May 1993 for the loss of cargo consisting of 2000
metric tons of red split lentils valued at Rs. 25,668,380/- and 200
metric tons of chickpeas valued at Rs. 1,654,992/- consigned to the42 Sri Lanka Law Reports [2007] 2SriL.R
plaintiff-respondent on M.V. ‘Elitor’ which sailed from the port of Mersin
in Turkey on or about 24th May 1987.
The cargo comprising 2000 metric tons of red split lentils valued at
Rs. 25,668,380/- had been insured on 2nd April 1987 by the policy
marked as P1, against total loss of the entire consignment by total
loss of the carrying vessels and the 200 metric tons of chickpeas
valued at Rs, 1,654,992/- was insured on 12th May 1987 by the policy
marked as P2 against loss by any risk, except those excepted under
the said policy by Institute Cargo Clause A.
The said policies of insurance were issued by National Insurance
Corporation. The defendant-appellant is the successor to the
business of the said Corporation and all its assets and liabilities.
The plaintiff-respondent’s version is that after sailing from the Port
of Mersin on 24th May 1987, the vessel M.V. ‘Elitor’ developed engine
trouble and called at its home port in Limersol, and sailed therefrom
on or about 20th June 1987 and sank with all its cargo on or about 8th
July 1987. The entire consignment of the plaintiff-respondent was lost.
The plaintiff-respondent notified the defendant-appellant of its
claims on the said policies in August 1987. However these claims
were not met by either the defendant-appellant or its predecessor.
The plaintiff-respondent states however, that others who had
consigned cargo on board the same vessel were paid by the National
Insurance Corporation admitting its liability. A cause of action having
arisen to sue the defendant-appellant for monies due under the above
policies, the plaintiff-respondent has instituted this action.
At the trial the defendant repudiated liability on several grounds,
including that the vessel never left the port on its voyage to Colombo,
the ship was not seaworthy for the voyage to Colombo, the ship
secretly discharged the cargo of red split lentils and chickpeas in
Lebanon, the plaintiff failed to inform the defendant immediately of the
sinking of the ship, and the plaintiff has not suffered any loss or
damage since the equivalent of the consignment said to have been
lost was supplied to the plaintiff by Betas Beton.
S. Ashokan, a director with the plaintiff company gave evidence
that the vessel, ‘Elitor1 did not arrive at the port of Colombo and that
ordinarily the ship would have arrived within two to three weeks. Duesc
Janashakthi Insurance Co. Ltd v Umbichy Ltd.
— (Shiranee Tilakawardane. J.) 43
to the non-arrival of the ship, the plaintiff made inquiries through
Lloyds and from local agents and the owners. Telexes received from
Lloyds of London, marked as P3 and P4 were produced by the
witness. Referring to the originals of these documents the witness
stated that these documents were taken over by the CID as part of an
ongoing investigation. The witness certified that documents P3 and
P4 are copies of the originals and were taken and maintained in the
ordinary course of business.
The plaintiff-respondent made its claims to the defendant-appellant
through its letters P8 dated 24th August 1987, and P11 dated 18th
August 1987. The plaintiff-respondent also produced documents
P9(a) and P10(a) which are Clean Shipped on Board Bills of Lading
stating that the consignments described therein have been shipped at
the Port of Loading in Mersin, Turkey. Documents P10(b) and P10(c)
are certificates issued by the shipping agent in Turkey certifying that
the shipment has been effected in the vessel ‘Elitor’ and that the
vessel ‘Elitor’ is an ocean going seaworthy vessel.
The documents submitted along with claims P8 and P11 establish
that the consignment of red split lentils and chickpeas were shipped
on board the vessel ‘Elitor’ from the Port of Mersin, Turkey. These
documents have not been contested by the defendant-appellant. As
remarked upon by the learned Judge, although the Defendant has
taken several positions against the plaintiff’s claim, the defendant has
neither called any witnesses not elicited even under crossexamination the veracity of the position taken by them.
The learned High Court Judge having examined and analysed the
evidence in view of relevant legal positions, concluded that “the
plaintiff has established its claim on the basis that the ship M. V. Elitor
on board of which the plaintiff-respondent’s consignment of goods
covered by P1 and P2 were legally presumed to be lost and resulted
in the actual total loss of goods to the plaintiff which is covered byP1
and P2 with the liability of the defendant, having to pay the value the
two contracts have covered.”
Aggrieved by this decision of the High Court, the defendantappellant has raised this appeal on the following grounds;
Firstly, that the High Court has erred in its application of the
presumption, since there was no proof that the vessel has set sail for44 Sri Lanka Law Reports [2007] 2SriL.R
Colombo and there was proof of unauthorized deviation from the
normal route which discharged the insurer of liability.
Secondly, that the plaintiff-respondent has failed to prove that it
complied with the institute Classification Clause, and as such the
claim is not maintainable.
Thirdly, that the documents P3 and P4 which are copies of telexes
said to have been received from Lloyds have not been proved and as
such, were inadmissible.
Considering the first ground of appeal, it is the defendantappellant’s contention that the presumption has been incorrectly
applied in the instant case as for the presumption to operate it is
necessary to establish that the vessel sailed on the voyage insured.
The defendant-appellant submits that in the instant case, there is no
evidence that the vessel set sail for Colombo.
The evidence on record reveals that the vessel left the Port of
Mersin, and called at the port in Limersol due to engine trouble, and
from there sailed to Thessaloki on or about the 20th of June 1987. The
documents submitted together with the claims P8 and P11 confirm
that the consignment of 2000 metric tons of red split lentils and 200
metric tons of chickpeas were shipped on board the vessel M.V. Elitor
as covered by the policy. Document P4 from Lloyds established that
the ship has reached the port in Limersol and left the port on the 29th
of June and hence no information is available.
There is no doubt that the vessel has in fact left the port of Mersin,
and the documents on record indicate clearly that the shipment is to
Colombo from Mersin via the steamer M.V. Elitor (Vide documents P6,
P9(a), which established that the voyage contemplated was in fact the
voyage insured – from Mersin, Turkey to Colombo, Sri Lanka). I find
that the Learned Judge correctly held that vessel did sail from the Port
of Mersin on or about 24th May 1987 for the port of Colombo.
As part of the same ground, the defendant-appellant has also
contended the issue that there has been a deviation from the
authorised voyage and that this discharges the insurer from all liability
on the policy of insurance. It is unnecessary to examine the merits of
this argument as this is a new issue which the defendant-appellant
failed to raise at the trial stage. The defendant-appellant is prohibitedfrom setting up a different case from that set up at the trial. I agree with
the plaintiff-respondent’s submission that deviation is a question of
fact and the impact of such a deviation upon the insurer’s liability must
be considered in light of attendant circumstances.
The defendant-appellant has also alleged that it is not liable under
the insurance policy since the plaintiff-respondent is in breach of a
condition of the policy, namely the Institute Classification Clause. The
written submissions of the defendant-appellant clearly mentions that
the same issue is contained in paragraph 8 of the answer at page 45
and issue 5 of the defendant at page 164.
However a bare reading of both documents does not reveal any
reference to the Institute Classification Clause or a breach thereof. In
paragraph 8 of the answer reference is made to the un-seaworthiness
of the vessel and also to the breach of the unseaworthiness and
unfitness exclusion clause. No clear mention is made of the breach in
the manner taken up in appeal; that the plaintiff-respondent is in
breach of the conditions of the policy pertaining to the Institute
Classification Clause. There is no doubt that the defendant-appellant
cannot take up a case in appeal, which differs from that of the trial.
Therefore, where the defendant-appellant has failed to raise the
matter clearly at the trial stage, it is prohibited from doing so in appeal.
However, even if this court considers the alleged breach of the
Institute Classification Clause as raised by the defendant-appellant,
the contention fails since the defendant-appellant has failed to
discharge the burden of proving a breach of warranty by the plaintiffrespondent.
It is the defendant-appellant’s position that being a warranty, the
burden was on the plaintiff-respondent to establish compliance. The
defendant-appellant claims that as the plaintiff-respondent has failed
to discharge its burden and prove compliance with the conditions in
this clause, the defendant-appellant is discharged from any liability
under the policy.
The Institute Classification Clause stipulates that:
“The marine transit rates agreed for this insurance apply only to
cargoes and/or interests carried by Mechanically self-propelled
vessels of steel construction Classed as below by one of the
following classification societies”.46 Sri Lanka Law Reports [2007] 2SriL.R
“Provided such vessels are:
(i) Not over 15 years of age or
(ii) Over 15 years of age but not over 25 years of age and have
established and maintained a regular pattern of trading on an
advertised scheduled to load and unload at specific ports.”
The clause clearly requires that the vessel be classed with a
Classification Society agreed by the underwriters, remains in the
same class and also that the Classification Society’s
recommendations, requirements and restrictions regarding
seaworthiness and of her maintenance thereof be complied with by
the date(s) set by the Society. (Vide, Hodges on Law of marine
Insurance at page 113).
The main objective of the clause is to improve safety standards
and ensure the seaworthiness of the vessel through the intervention
of a reputed Classification Society agreed by the underwriters.
Though not specifically mentioned as such, the clause be considered
as a warranty if there is an intention to warrant. It follows that a breach
of this clause would relieve the insurer from all liability under the policy
as from the date of the breach.
It is not uncommon that a policy will contain a warranty that the
vessel will not be operated without a certificate of seaworthiness or
that the vessel will be surveyed and inspected by an approved
surveyor and a certificate issued by the surveyor attesting to the
seaworthiness of the vessel. (Vide, Parks on the Law and Practice of
Marine Insurance and Average at page 247; Royster Guano Co. v
Globe & Rutgers^). In The Al Jubail /l/,(2> it was held that the
compliance with the warranty was a condition precedent to coverage,
and the assured failed to recover.
There is little doubt therefore that the Institute Classification Clause
in the policy is a warranty which requires compliance by the plaintiffrespondent. However, the question of where the onus of proof lies in
such a case is for the court to consider when coming to a
determination.
Under the general law of insurance the burden of proving that a
warranty has been broken lies upon the insurers. (Vide. Colinvaux on
The Law of Insurance at page 115) In Stebbing v Liverpool andJanashakthi Insurance Co. Ltd v Umbichy Ltd.
(Shiranee Tilakawardane. J.)
London and Globe®) where a claim by the applicant was challenged
by the respondent insurers on the basis that the applicant had
suppressed material facts and had made untrue answers in the
proposal form, the court held that the burden of proving the untruth of
the answers in the proposal, lay on the respondents; if they cannot
establish it, then they fail in the defence. Laying down a test for
determining the onus of proof in a given case, Lord Reading stated
that, “the burden of proof lies at first on the party against whom
judgment would be given if no evidence at all was adduced.”
Similarly in Marshall v Emperor L/fe,(4) where the right of the
assured to recover on a policy is disputed on the ground that he had
stated in the proposal that he had not had certain diseases, whereas
he in fact had one of them at the time, it was held that the insurer is
obliged to give particulars of the symptoms of the disease alleged.
In the case of marine insurance it is well established that the
burden of proving a breach of the implied warranty of seaworthiness
lies on the insurer where he alleges it. (Vide, Ivamy on Marine
Insurance at page 298). Ivamy refers to the decisions in Parker v
Porte*5) and Franco v Natuschf®. In Pickup v Thames and Mersey
Marine Insurance Co./ 7) the court upheld the principle that even
where a ship springs a leak soon after commencing her voyage, the
burden of proof remains on the insurer and there is no shift in the
principle that the party alleging un-seaworthiness must prove it.
Parks in The Law and Practice of Marine Insurance and Average
at page 249, states conclusively that, “the burden of proving a breach
of warranty is on the underwriter, and that is so even where
compliance is expressed as a condition precedent to recovery under
the policy.” The same view is expressed in Arnold on The Law of
Marine Insurance and Average at page 684.
In Bond Air Services Incv H///,<8) the court clearly held that "the burden of proof of breaches of conditions was on the respondents in accordance with the ordinary rule that the onus of proving a breach of a condition of an insurance policy which would relieve the insurer from liability in respect of a particular loss was, unless the policy otherwise provided, on the insurer." Also in Barettv London General Insurance Co. Ltd.W at 238 it was pronounced that the burden of proof lies on the insurers.48 Sri Lanka Law Reports [2007] 2 Sri LR I do not believe there to be any doubt regarding the fundamental position of insurance law that the burden of proof related to an alleged breach of warranty lies on the insurer alleging it. I cannot accept the contention of the defendant-appellant that the burden of proving compliance with the warranty contained in the Institute Classification Clause lies on the plaintiff-respondent. In this case the burden of proving non-compliance with the warranty lies squarely on the defendant-appellant. It is clear that the defendant-appellant has failed to prove the charge against the plaintiff-respondent. The final ground of appeal put forward by the defendant-appellant related to the admissibility of documents P3 and P4, which were admitted by the learned Judge under section 35(1) of the Evidence Ordinance. The witness, S. Ashokan stated in evidence that due to the non-arrival of the ship, the plaintiff-respondent Company made inquiries as to the whereabouts of the ship, through Lloyds by telex and also the local agents and owners of the ship. The documents P3 and P4 produced by the witness are communications from Lloyds to the plaintiff-respondent Company in response to inquiries made in the ordinary course of business of the plaintiff-respondent company. With regard to the originals of these documents, the witness stated that these documents were taken over by the CID as part of an investigation on matters concerning the vessel M.V. Elitor. The witness gained access to these documents when he became a Director of the plaintiff-respondent company following the death of both his father and uncle The witness has certified that these were copies taken from the originals which were handed over to the CID and they were copies taken in the ordinary course of business related to the company. Section 35(a) of the Evidence Ordinance makes admissible a statement of fact contained in a record compiled, (a) by a person in the course of any trade or business in which he is engaged or employed or for the purposes of any paid or unpaid office held by such person, and (b) from information supplied to such person by any other person who had or may have had personal knowledge of the matter dealt with in that information.Janashakthi Insurance Co. Ltd v Umbichy Ltd. SC (Shiranee Tilakawardane, J.) 49_ The law of evidence provides that the documents maintained by a party in the ordinary course of business can be produced by such party as evidence. Section 34(a) of the Evidence Ordinance permits a witness who by reference to documents and studying the relevant documents learns to speak on the facts disclosed by those documents. It is contended by the defendant-appellant that the said documents have not been maintained in the ordinary course of business. The record shows that the documents were admitted subject to proof and that objections were raised by the defendant against their reception in evidence as they had not been proved. However the defendant did not raise a challenge at the trial to the statement of the witness that the documents were maintained in the ordinary course of business. No questions were put to the witness on whether the documents had been maintained in the ordinary course of business of the company. The documents are admissible under 35(a) of the Evidence Ordinance. The Director of the plaintiff-respondent Company has certified in Court that the documents were maintained in the ordinary course of business. I find no reason to disbelieve the statements of the witness. I find that the documents P3 and P4 produced before court were maintained in the ordinary course of business of the company and find no impediment to the admissibility of this evidence in light of the provisions contained in the Evidence Ordinance. The defendant-appellant has also sought to rely on the Evidence (Special Provisions) Act No. 14 of 1995. It was contended that while this Act provides for the admissibility of contemporaneous recordings by electronic means, such evidence would only be admissible if notice is given to the other party and an opportunity to inspect the evidence and the machine used to produce the evidence. I find it unnecessary to comment on the merits of this submission, as this too is a fresh submission made at the appeal stage which finds no place in the trial proceedings. It is clear having considered all three grounds of appeal submitted by the respondent that the vessel M.V. Elitor certainly left the port in Mersin for Colombo as evidenced by the several shipping documents and communications produced in Court. It is also clear that the burden50 Sri Lanka Law Reports [2007] 2SriLR of proving the breach of warranty lay on the defendant-appellant and that no evidence has been produced to establish its claim against the plaintiff-respondent. On the admissibility of documents, I find that the documents are admissible under section 35(a) of the Evidence Ordinance as they had been maintained in the ordinary course of business of the plaintiff-respondent Company. For these reasons, I find that the judgment of the High Court is correct in fact and law and this appeal is refused and dismissed. I order that the defendant-appellant pay costs in the sum of Rs.10,0007- to the plaintiff-respondent. S.N. SILVA, CJ. - I agree. JAYASINGHE, J. - I agree. Appeal dismissed. WEERASINGHE v JAYASINGHE SUPREME COURT DR. SHIRANI BANDARANAYAKE, J. AMARATUNGA, J. SOMAWANSA, J. SC 21/2006 SC Spl LA 286/2004 HC RATNAPURA 8/2001 MC BALANGODA 39587/M OCTOBER 25, 2006 JANUARY 10, 2007 Maintenance Ordinance, Section 6 - Corroboration - When? - D.N.A. Test? Paternity - Cogent evidence - Necessity to corroborate evidence of mother. The Magistrate's Court found that the appellant is the father of the child and was directed to pay maintenance to the child. The High Court affirmed the said order. It was contended in appeal that, there is a DNA report indicating that he is not the father of the child.SC Weerasinghe v Jayasinghe 51 On a suggestion made by the Supreme Court the DNA report was sent to the GENETECH for a medical opinion - which confirmed the DNA report. It was contended by the appellant that in the Magistrate's Court the respondent's evidence had not been corroborated by other evidence in terms of section 6 of the Maintenance Ordinance. Held: Per Dr. Shirani A. Bandaranayake, J. "In the instant case, it is apparent that the respondent's evidence had convinced the Magistrate. In such circumstances, in terms of section 6 it was necessary for the respondent's evidence to have been corroborated by other independent evidence, where the question of paternity looms large, the mother's evidence would have to be corroborated by independent evidence". Held further: (1) In cases where parentage (paternity) is in issue the most cogent . evidence is likely to be obtained by blood tests in general and DNA tests in particular. Such tests may be used either to rebut the presumption or allegation of paternity or to establish marriage". (2) DNA profiling can establish parentage with a virtual certainty; DNA tests are also known as genetic finger printing could by matching the alleged father's DNA bands with that of the child's bands after excluding such bands that match the mother's would make positive finding of paternity with virtual certainty. (3) The DNA test could be used by the appellant to rebut the allegation of paternity. APPEAL from the judgment of the High Court of Ratnapura. Cases referred to: (1) Angohamyv Babasinno 1910 4 Weerakantha's reports 60. (2) Karuppiah Kangany v Ramaswamy Kangany 52 NLR 262. (3) Wimalaratne v Milina 77 NLR 332. (4) Turin v Liyanora 53 NLR 310. (5) Le ROUXM Neethling - Juta (1891-1892) 247. (6) Stockerv Stacker 1966 1 WLR 190.52 Sri Lanka Law Reports [2007] 2SriL.R W. Dayaratne with P. Jayawardane for respondent-appellant-appellant. Ananda Panagoda with Kumari Thirimanne for appellant-respondentrespondent. May 24, 2007 DR. SHIRANI BANDAR ANAYAKE, J. This is an appeal from the judgment of the High Court of Ratnapura dated 14.09.2004. By that judgment the learned Judge of the High Court affirmed the order of the learned Additional Magistrate of Balangoda dated 26.04.2001 by which the defendant-appellant-appellant (hereinafter referred to as the appellant) was found to be the father of the child and the appellant was directed to pay a sum of Rs. 4000/- per month as maintenance of the child. The appellant appealed to the Court on which Special Leave to Appeal was granted on the following questions : (4) Is the entire approach of the learned Magistrate in regard to the question of paternity of the child wrong and has the learned High Court Judge failed to consider it in his order? (5) Has the learned Magistrate failed to consider that in terms of section 6 of the Maintenance Ordinance, which speaks of corroboration of the evidence of the mother, it must be taken to include any kind of corroboration which is recognized by law and has the learned Magistrate as well as learned High Court Judge failed to consider the said question of law? (6) Has the learned Magistrate erroneously considered the mere contradictions of the respondent/petitioner's evidence as corroborations of the applicant/respondent's case? When this matter was taken up for hearing, learned Counsel for the appellant brought to the notice of this Court that there is a report of the DNA test, setting out the results that the appellantSC Weerasinghe v Jayasinghe (Dr. Shirani Bandaranavake, J.) 53 is not the father of the child of the applicant-respondentrespondent (hereinafter referred to as the respondent). This Court had thereafter directed the appellant to obtain a special medical opinion on the DNA report, which was obtained from the GENETECH Institution. Accordingly, both learned Counsel agreed that the only question that has to be considered was as follows: "In view of the DNA test report, whether the respondent's evidence has been corroborated, in terms of section 6 of the Maintenance Ordinance? The facts of this appeal, as set out by the appellant, albeit brief, are as follows: The respondent instituted action in the Magistrate's Court, Balangoda against the appellant seeking for orders that the appellant be declared as the father of the child, namely, Rasandanie Sachinika (hereinafter referred to as the child) and for the appellant to pay a sum of Rupees Five Thousand (Rs. 5000/-) per month as maintenance. The appellant denied paternity and therefore was enlarged on a personal bail in a sum of Rupees Five Thousand (Rs. 5000/-) and the case was fixed for inquiry. When the said inquiry commenced in April 1998, the respondent, her mother, namely, Kasturi Arachchige Leelawathie, her grandmother, namely, Matarabha Parana Withanalage Alisnona and a midwife of the Base Hospital Balangoda, namely Widane Pathirannahelage Nandawathie gave evidence and filed the documents, which contained the birth certificate of the child (e^l), complaint made by the respondent to the Balangoda Police (e z2) and the Medico Legal Report of the respondent dated 21.01.1998 (oj 3). The appellant denied allegations including paternity against him and stated that the respondent is his divorced wife's eldest sister and he came to know about the birth of the child only at the inquiry held at Balangoda Police Station into a complaint made against him by the respondent. He has produced two documents, namely his statement made to Balangoda Police54 Sri Lanka Law Reports [2007] 2SriL.R Station on 14.10.1997 (X) and the plaint of the Divorce Case No. 248/97 of District Court, Balangoda (XI). Learned Magistrate of Balangoda held that the appellant was the father of the child and ordered a sum of Rupees Four Thousand/(Rs. 4000/-) per month as maintenance to the child, which order was affirmed by the learned Judge of the High Court. Having stated the facts of this appeal, let me now turn to consider the question of corroboration by other evidence vis-avis the applicability of the DNA test report. Section 6 of the Maintenance Ordinance deals with the rule requiring corroboration of the mother's evidence in proceedings for maintenance and is in the following terms: "No order shall be made on any such application as aforesaid on the evidence of the mother of such child unless corroborated in some material particular by other evidence to the satisfaction of the Magistrate." The said provision is quite clear and what it stipulates is the necessity for the mother's evidence to be corroborated by other evidence. . Such corroboration of the mother's evidence has been vital in establishing paternity and this was the approach of our Courts that considered matters even under section 7 of the Maintenance Ordinance, No. 19 of 1889, which section was an identical provision to that of section 6 of the Maintenance Ordinance. For instance, in the early decision of Angohamyv BabasinnoW, it was held by Wood Renton, J. that corroboration should consist of some evidence, oral or real, entirely independent of that of the applicant which renders it probable that her story as to the paternity of the children in respect of whom she is applying for maintenance is true. In fact our Courts have been specific of the need for corroborating the mother's evidence in establishing paternity as even on instances where the mother's evidence had appeared to be quite impressive. This position was clearly laid down in Karuppiah Kanganyv Ramaswamy KanganyV) where itSC Weerasinghe v Jayasinghe (Dr. Shirani Bandaranayake, J.) 55 was stated that upon the uncorroborated testimony of the mother, a Magistrate cannot make an order against the putative father. It is thus apparent that in a matter, where the question of paternity is looming large, the mother's evidence would have to be corroborated by independent evidence. Such type of corroboration was defined in Wimalaratne v Milinal3), where it was stated that, in an application for maintenance of an illegitimate child, evidence of any number of witnesses, who had heard from the applicant's mouth that the defendant was the father of the child would not constitute independent corroboration of the story of the applicant as to paternity. The necessity for corroborated evidence was considered at length in Turin v LiyanoraW, in terms of section 6 of the Maintenance Ordinance, where it was stated that, "What the statute provides is that no order for maintenance of an illegitimate child should be made unless a mother who has given convincing evidence is corroborated in some material particular. If the mother's evidence does not convince the Judge the question of corroboration does not arise". In Turin's case reference was also made to the observations of De Villers, CJ, in Le Roux v Neethlingi5) regarding corroboration, where it was stated that, "/ think it may be laid down as a general rule that the plaintiff who seeks to fix the paternity of an illegitimate child on a man must clearly prove it, and must be corroborated by some independent testimony, and in case of doubt, judgment must be given in favour of the defendant." In the instant matter, it is apparent that the respondent's evidence had convinced the learned Magistrate. In such circumstances, in terms of section 6 of the Maintenance Ordinance, it was necessary for the respondent's evidence to have been corroborated by other independent evidence.56 Sri Lanka Law Reports [2007] 2 Sri LR The only independent witness was the midwife, namely Widane Pathirannahelage Nandawathie. She had been a Family Health Officer attached to the Base Hospital, Balangoda. Admittedly her duty had been to enter the necessary details for the issuance of the child's Birth Certificate. Except for the details relevant for that purpose, the witness had not given any evidence to corroborate the respondent's evidence. Infact, it is interesting to note that the proceedings of the Magistrate's Court Balangoda of 06.05.1999, disclose that, the Magistrate herself had been of the view that the witness Nandawathie's evidence had been detrimental to the respondent. In such circumstances, it is apparent that the respondent's evidence had not been corroborated by other evidence in terms of section 6 of the Maintenance Ordinance. In the light of the aforementioned, it would be of paramount importance to consider the applicability of the evidence based on the DNA Report in deciding the paternity of the child. As stated earlier, both parties, on a suggestion made by this Court had agreed to subject themselves to a DNA test.The said DNA test was carried out by the Molecular Medicine Unit of the University of Kelaniya and had stated that the appellant, namely Upul Kumara Weerasinghe is not the father of the child, namely, Rasandanie Sachinika. Thereafter, both parties had also obtained a further report from Molecular Diagnostics and School of Gene Technology (GENETECH), which had clearly stated in its conclusion that the respondent is not the biological father of the child in question and that this could be stated with 100% certainty. Although there are no statutory guidelines as to when blood and/or DNA tests should be ordered by Court, in different instances the Court has directed the use of such tests. In Stocker v Stocked6), Karminski, J. referred to the importance of using serological evidence as it could successfully exclude a proportion of men, wrongly supposed to be father of a given child.